NOTE: Where it is feasible, a syllabus (headnote) will be
released, as isbeing done in connection with this case, at the time the opinion
is issued.The syllabus constitutes no part of the opinion of the Court but has
beenprepared by the Reporter of Decisions for the convenience of the reader. See

United
States v. Detroit Timber &
Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MEDELLIN

v.
TEXAS

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS

No. 06–984. Argued October 10, 2007—Decided March 25, 2008

In the

Case Concerning
Avena and Other Mexican Nationals (Mex.
v.

U. S.

), 2004 I. C. J. 12 (Avena),
the International Court of Justice(ICJ) held that the United States had violated
Article 36(1)(b) of theVienna Convention on Consular Relations (Vienna
Convention or Convention) by failing to inform 51 named Mexican nationals,
including petitioner Medellín, of their Vienna Convention rights. The ICJ found
that those named individuals were entitled to review and reconsideration of
their U. S. state-court convictions and sentences regardless of their failure to
comply with generally applicable staterules governing challenges to criminal
convictions. In Sanchez-Llamas
v. Oregon,
548 U. S. 331—issued after Avena but involvingindividuals who were not named in the Avena judgment—this Court held, contrary to the ICJ’s determination,
that the Convention did not preclude the application of state default rules. The
President then issued a memorandum (President’s Memorandum or Memorandum)
stating that the United States would "discharge its international obligations"
under
Avena "by having State courts give effect to the
decision."

Relying on

Avena and the President’s Memorandum, Medellín filed a second Texas
state-court habeas application challenging his statecapital murder conviction
and death sentence on the ground that he had not been informed of his Vienna
Convention rights. The Texas Court of Criminal Appeals dismissed Medellín’s
application as anabuse of the writ, concluding that neither Avena nor the President’s Memorandum was binding federal law that could
displace the State’s limitations on filing successive habeas applications.

Avena judgment is not directly enforceable as domestic law in state
court. Pp. 8–27.

(a) While a treaty may constitute an international
commitment,it is not binding domestic law unless Congress has enacted
statutesimplementing it or the treaty itself conveys an intention that it
be"self-executing" and is ratified on that basis. See,

e.g., Foster v. Neil-son,
2 Pet. 253, 314. The Avena judgment creates an internationallaw obligation on the part of
the United States, but it is not automatically binding domestic law because none
of the relevant treatysources—the Optional Protocol, the U. N. Charter, or the
ICJ Statute—creates binding federal law in the absence of implementing
legislation, and no such legislation has been enacted.

The most natural reading of the Optional Protocol is that it
is a bare grant of jurisdiction. The Protocol says nothing about the effect of
an ICJ decision, does not commit signatories to comply therewith, and is silent
as to any enforcement mechanism. The obligation tocomply with ICJ judgments is
derived from Article 94 of the U. N.Charter, which provides that "[e]ach . . .
Member . . . undertakes to comply with the [ICJ’s] decision . . . in any case to
which it is a party." The phrase "undertakes to comply" is simply a commitmentby
member states to take future action through their political branches. That
language does not indicate that the Senate, in ratifying the Optional Protocol,
intended to vest ICJ decisions with immediate legal effect in domestic courts.

This reading is confirmed by Article 94(2)—the enforcement
provision—which provides the sole remedy for noncompliance: referral to the U.
N. Security Council by an aggrieved state. The provision of anexpress diplomatic
rather than judicial remedy is itself evidence that ICJ judgments were not meant
to be enforceable in domestic courts. See

Sanchez-Llamas,
548 U. S., at 347. Even this "quintessentially international remed[y]," id.,
at 355, is not absolute. It requires a Security Council resolution, and the
President and Senate were undoubtedly aware that the United States retained the
unqualifiedright to exercise its veto of any such resolution. Medellín’s
construction would eliminate the option of noncompliance contemplated byArticle
94(2), undermining the ability of the political branches to determine whether
and how to comply with an ICJ judgment.

The ICJ Statute, by limiting disputes to those involving
nations, not individuals, and by specifying that ICJ decisions have no
bindingforce except between those nations, provides further evidence that the

Avena judgment does not automatically constitute federal law
enforceable in U. S. courts. Medellín, an individual, cannot be considered a
party to the Avena decision. Finally, the United States’
interpretation of a treaty "is entitled to great weight," Sumitomo Shoji
3 Cite as: 552 U. S. ____ (2008)

Syllabus

America, Inc.

v. Avagliano,
457 U. S., at 184–185, and the Executive Branch has unfailingly adhered to its
view that the relevant treatiesdo not create domestically enforceable federal
law. Pp. 8–17.

(b) The foregoing interpretive approach—parsing a treaty’s text to determine
if it is self-executing—is hardly novel. This Court has long looked to the
language of a treaty to determine whether the President who negotiated it and
the Senate that ratified it intendedfor the treaty to automatically create
domestically enforceable federallaw. See,

e.g., Foster,
supra. Pp. 18–20.

(c) The Court’s conclusion that

Avena does not by itself constitutebinding federal law is confirmed by
the "postratification understanding" of signatory countries. See Zicherman v. Korean Air Lines
Co., 516 U. S. 217, 226. There are currently 47
nations that are parties tothe Optional Protocol and 171 nations that are
parties to the ViennaConvention. Yet neither Medellín nor his amici have identified a single nation that treats ICJ judgments as
binding in domestic courts. The lack of any basis for supposing that any other
countrywould treat ICJ judgments as directly enforceable as a matter ofits
domestic law strongly suggests that the treaty should not
be soviewed in our courts. See Sanchez-Llamas,
548 U. S., at 343–344, and n. 3.

The Court’s conclusion is further supported by general principles of
interpretation. Given that the forum state’s procedural rules governa treaty’s
implementation absent a clear and express statement tothe contrary, see

e.g., id., at 351, one would expect the ratifying parties to the
relevant treaties to have clearly stated any intent to giveICJ judgments such
effect. There is no statement in the OptionalProtocol, the U. N. Charter, or the
ICJ Statute that supports this notion. Moreover, the consequences of Medellín’s
argument give pause: neither Texas nor this Court may look behind an ICJ
decision and quarrel with its reasoning or result, despite this Court’s holding
in
Sanchez-Llamas that "[n]othing in the [ICJ’s]
structure or purpose. . . suggests that its interpretations were intended to be
conclusive on our courts." id., at 354. Pp. 20–24.

(d) The Court’s holding does not call into question the ordinaryenforcement
of foreign judgments. An agreement to abide by the result of an international
adjudication can be a treaty obligation like any other, so long as the agreement
is consistent with the Constitution. In addition, Congress is up to the task of
implementing nonself-executing treaties, even those involving complex commercial
disputes. Medellín contends that domestic courts generally give effect toforeign
judgments, but the judgment Medellín asks us to enforce is hardly typical: It
would enjoin the operation of state law and forcethe State to take action to
"review and reconside[r]" his case. Foreign

2. The President’s Memorandum does not independently require
the States to provide review and reconsideration of the claims of the51 Mexican
nationals named in

Avena without regard to state procedural default rules. Pp. 27–37.

(a) The President seeks to vindicate plainly compelling interestsin ensuring
the reciprocal observance of the Vienna Convention, protecting relations with
foreign governments, and demonstrating commitment to the role of international
law. But those interests do not allow the Court to set aside first principles.
The President’s authority to act, as with the exercise of any governmental
power, "muststem either from an act of Congress or from the Constitution
itself."

Youngstown Sheet & Tube Co. v. Sawyer,
343 U. S. 579, 585.

Justice Jackson’s familiar tripartite scheme provides the acceptedframework
for evaluating executive action in this area. First, "[w]hen the President acts
pursuant to an express or implied authorization of Congress, his authority is at
its maximum, for it includes allthat he possesses in his own right plus all that
Congress can delegate."

Youngstown,
343 U. S., at 635 (Jackson, J., concurring). Second, "[w]hen the President acts
in absence of either a congressional grant or denial of authority, he can only
rely upon his own independent powers, but there is a zone of twilight in which
he and Congressmay have concurrent authority, or in which its distribution is
uncertain." Id., at 637. In such a circumstance, Presidential
authority can derive support from "congressional inertia, indifference or
quiescence." Ibid. Finally, "[w]hen the President takes measures
incompatible with the expressed or implied will of Congress, his power is atits
lowest ebb," and the Court can sustain his actions "only by disabling the
Congress from acting upon the subject." Id.,
at 637–638. Pp. 28–29.

(b) The United States marshals two principal arguments in favor of the
President’s authority to establish binding rules of decision that preempt
contrary state law. The United States argues that the relevant treaties give the
President the authority to implement the

Avena judgment and that Congress has acquiesced in the exercise ofsuch
authority. The United States also relies upon an "independent" international
dispute-resolution power. We find these arguments, aswell as Medellín’s
additional argument that the President’s Memorandum is a valid exercise of his
"Take Care" power, unpersuasive.Pp. 29–37.

(i) The United States maintains that the President’s Memo5
Cite as: 552 U. S. ____ (2008)

Syllabus

randum is implicitly authorized by the Optional Protocol and
the

U. N. Charter. But the responsibility for transforming an
international obligation arising from a non-self-executing treaty into domestic
law falls to Congress, not the Executive.

Foster,
2 Pet., at 315. It is a fundamental constitutional principle that " ‘[t]he power
to makethe necessary laws is in Congress; the power to execute in the
President.’ " Hamdan v. Rumsfeld,
548 U. S. 557, 591. A non-selfexecuting treaty, by definition, is one that was
ratified with the understanding that it is not to have domestic effect of its
own force. That understanding precludes the assertion that Congress has
implicitly authorized the President—acting on his own—to achieve precisely the
same result. Accordingly, the President’s Memorandum does not fall within the
first category of the Youngstown framework. Indeed, because the non-self-executing
character of the relevant treaties not only refutes the notion that the
ratifying parties vested thePresident with the authority to unilaterally make
treaty obligationsbinding on domestic courts, but also implicitly prohibits him
from doing so, the President’s assertion of authority is within Youngstown’s
third category, not the first or even the second.

The United States maintains that congressional acquiescence
requires that the President’s Memorandum be given effect as domesticlaw. But
such acquiescence is pertinent when the President’s action falls within the
second

Youngstown category, not the third. In anyevent,
congressional acquiescence does not exist here. Congress’ failure to act
following the President’s resolution of prior ICJ controversies does not
demonstrate acquiescence because in none of those prior controversies did the
President assert the authority to transform aninternational obligation into
domestic law and thereby displace statelaw. The United States’ reliance on the
President’s "related" statutory responsibilities and on his "established role"
in litigating foreign policy concerns is also misplaced. The President’s
statutory authorization to represent the United States before the U. N., the ICJ,
andthe U. N. Security Council speaks to his international responsibilities, not to any unilateral authority to
create domestic law.

The combination of a non-self-executing treaty and the lack
of implementing legislation does not preclude the President from acting tocomply
with an international treaty obligation by other means, solong as those means
are consistent with the Constitution. But the President may not rely upon a
non-self-executing treaty to establishbinding rules of decision that pre-empt
contrary state law. Pp. 30–

35.

(ii) The United States also claims that—independent of
theUnited States’ treaty obligations—the Memorandum is a valid exercise of the
President’s foreign affairs authority to resolve claims dis6 MEDELLIN

v. TEXAS

Syllabus

putes. See,

e.g., American
Ins. Assn. v. Garamendi,
539 U. S. 396,

415. This Court’s claims-settlement cases involve a narrow
set of circumstances: the making of executive agreements to settle civil
claimsbetween American citizens and foreign governments or foreign nationals.
They are based on the view that "a systematic, unbroken, executive practice,
long pursued to the knowledge of the Congress and never before questioned," can
"raise a presumption that the [action] had been [taken] in pursuance of its
consent."

Dames & Moore

v.

Regan,
453 U. S. 654, 668. But "[p]ast practice does not, by itself, create power."
Ibid.
The President’s Memorandum—a directive issued to state courts that would compel
those courts to reopen final criminal judgments and set aside neutrally
applicable state laws—isnot supported by a "particularly longstanding practice."
The Executive’s limited authority to settle international claims disputes
pursuant to an executive agreement cannot stretch so far. Pp. 35–37.

(iii) Medellín’s argument that the President’s Memorandum isa
valid exercise of his power to "Take Care" that the laws be faithfully executed,
U. S. Const., Art. II, §3, fails because the ICJ’s decision in

NOTICE: This opinion is subject to formal revision before
publication in thepreliminary print of the United States Reports. Readers are
requested tonotify the Reporter of Decisions, Supreme Court of the United
States, Washington, D. C. 20543, of any typographical or other formal errors, in
orderthat corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 06–984

JOSE ERNESTO MEDELLIN, PETITIONER

v. TEXAS

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF
TEXAS

[March 25, 2008]

C

HIEF JUSTICE
ROBERTS
delivered the opinion of theCourt.

The International Court of Justice (ICJ), located in theHague,
is a tribunal established pursuant to the UnitedNations Charter to adjudicate
disputes between member states. In the

Case Concerning
Avena and Other Mexican Nationals (Mex.
v. U. S.),
2004 I. C. J. 12 (Judgment of Mar. 31) (Avena),
that tribunal considered a claim brought by Mexico against the United States.
The ICJ held that, based on violations of the Vienna Convention, 51 named
Mexican nationals were entitled to review and reconsideration of their
state-court convictions and sentences in the United States. This was so
regardless of any forfeitureof the right to raise Vienna Convention claims
because of afailure to comply with generally applicable state rules governing
challenges to criminal convictions.

In

Sanchez-Llamas
v. Oregon,
548 U. S. 331 (2006)— issued after Avena but involving individuals who were not named in the Avena judgment—we held that, contrary tothe ICJ’s determination, the
Vienna Convention did not preclude the application of state default rules. After
the Avena
decision, President George W. Bush determined, 2 MEDELLIN v. TEXAS

Opinion of the Court

through a Memorandum to the Attorney General (Feb. 28,2005),
App. to Pet. for Cert. 187a (Memorandum or President’s Memorandum), that the
United States would "discharge its international obligations" under

Avena "byhaving State courts give effect to the decision."

Petitioner José Ernesto Medellín, who had been convicted and
sentenced in Texas state court for murder, is one of the 51 Mexican nationals
named in the

Avena decision. Relying on the ICJ’s decision and
the President’s Memorandum, Medellín filed an application for a writ ofhabeas
corpus in state court. The Texas Court of Criminal Appeals dismissed Medellín’s
application as an abuse ofthe writ under state law, given Medellín’s failure to
raise his Vienna Convention claim in a timely manner under state law. We granted
certiorari to decide two questions. First,
is the ICJ’s judgment in Avena directly enforceable as domestic law in a state court in the
United States? Second,
does the President’s Memorandum independently require the States to provide
review and reconsideration of the claims of the 51 Mexican nationals named in
Avena without regard to state procedural default rules? We
conclude that neither Avena nor the President’s Memorandum constitutes directly enforceable
federal law that pre-empts state limitations on the filing of successive habeas
petitions. We therefore affirm the decision below.

its purpose is to "contribute to the development of
friendlyrelations among nations." 21 U. S. T., at 79;

Sanchez-Llamas,
supra, at 337. Toward that end, Article 36 of the
Convention was drafted to "facilitat[e] the exercise ofconsular functions." Art.
36(1), 21 U. S. T., at 100. It provides that if a person detained by a foreign
country "so requests, the competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State" of such detention,
and "inform the [detainee] of his righ[t]" to request assistance from the consul
of his own state. Art. 36(1)(b), id.,
at 101.

The Optional Protocol provides a venue for the resolution of
disputes arising out of the interpretation or application of the Vienna
Convention. Art. I, 21 U. S. T., at

326. Under the Protocol, such disputes "shall lie withinthe
compulsory jurisdiction of the International Court ofJustice" and "may
accordingly be brought before the [ICJ] . . . by any party to the dispute being
a Party to the present Protocol."

Ibid.

The ICJ is "the principal judicial organ of the United
Nations." United Nations Charter, Art. 92, 59 Stat. 1051,

T. S. No. 993 (1945). It was established in 1945 pursuant to
the United Nations Charter. The ICJ Statute—annexed to the U. N.
Charter—provides the organizational framework and governing procedures for cases
brought before the ICJ. Statute of the International Court of Justice (ICJ
Statute), 59 Stat. 1055, T. S. No. 993 (1945).

Under Article 94(1) of the U. N. Charter, "[e]ach Member of
the United Nations undertakes to comply with thedecision of the [ICJ] in any
case to which it is a party." 59 Stat. 1051. The ICJ’s jurisdiction in any
particular case, however, is dependent upon the consent of the parties. See Art.
36, 59 Stat. 1060. The ICJ Statute delineates two ways in which a nation may
consent to ICJ jurisdiction: Itmay consent generally to jurisdiction on any
questionarising under a treaty or general international law, Art.

4 MEDELLIN v. TEXAS

Opinion of the Court

36(2),

ibid.,
or it may consent specifically to jurisdictionover a particular category of
cases or disputes pursuant to a separate treaty, Art. 36(1), ibid.
The United States originally consented to the general jurisdiction of the ICJ
when it filed a declaration recognizing compulsory jurisdiction under Art. 36(2)
in 1946. The United States withdrew from general ICJ jurisdiction in 1985. See
U. S. Dept. of State Letter and Statement Concerning Termination of Acceptance
of ICJ Compulsory Jurisdiction (Oct. 7,1985), reprinted in 24 I. L. M. 1742
(1985). By ratifying the Optional Protocol to the Vienna Convention, the United
States consented to the specific jurisdiction of the ICJ with respect to claims
arising out of the Vienna Convention. On March 7, 2005, subsequent to the ICJ’s
judgment in Avena, the United States gave notice of withdrawal
from the Optional Protocol to the Vienna Convention. Letter from Condoleezza
Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the
UnitedNations.

B Petitioner José Ernesto Medellín, a Mexican national, has lived in the
United States since preschool. A member of the "Black and Whites" gang, Medellín
was convicted of capital murder and sentenced to death in Texas for the gang
rape and brutal murders of two Houston teenagers. On June 24, 1993, 14-year-old
Jennifer Ertman and 16year-old Elizabeth Pena were walking home when they
encountered Medellín and several fellow gang members. Medellín attempted to
engage Elizabeth in conversation. When she tried to run, petitioner threw her to
the ground.Jennifer was grabbed by other gang members when she, inresponse to
her friend’s cries, ran back to help. The gangmembers raped both girls for over
an hour. Then, to prevent their victims from identifying them, Medellín and
hisfellow gang members murdered the girls and discarded

5
Cite as: 552 U. S. ____ (2008)

Opinion of the Court

their bodies in a wooded area. Medellín was personally
responsible for strangling at least one of the girls with her own shoelace.

Medellín was arrested at approximately 4 a.m. on June29,
1993. A few hours later, between 5:54 and 7:23 a.m., Medellín was given

Miranda warnings; he then signed a written waiver and gave a
detailed written confession.App. to Brief for Respondent 32–36. Local law
enforcement officers did not, however, inform Medellín of his Vienna Convention
right to notify the Mexican consulateof his detention. Brief for Petitioner 6–7.
Medellín was convicted of capital murder and sentenced to death; hisconviction
and sentence were affirmed on appeal. Medellín v. State, No. 71,997 (Tex. Crim. App., May 16, 1997),App. to Brief
for Respondent 2–31.

Medellín first raised his Vienna Convention claim in his
first application for state postconviction relief. The state trial court held
that the claim was procedurally defaulted because Medellín had failed to raise
it at trial or on direct review. The trial court also rejected the Vienna
Convention claim on the merits, finding that Medellín had "fail[ed] to show that
any non-notification of the Mexican authorities impacted on the validity of his
conviction orpunishment."

Id., at 62.1 The Texas Court of Criminal

—————— 1The requirement of Article 36(1)(b) of the Vienna Convention that the
detaining state notify the detainee’s consulate "without delay" issatisfied,
according to the ICJ, where notice is provided within threeworking days.

Avena,
2004 I. C. J. 12, 52, ¶97 (Judgment of Mar. 31). See Sanchez-Llamas
v. Oregon,
548 U. S. 331, 362 (2006) (GINSBURG, J., concurring in judgment). Here, Medellín
confessed within three hours of his arrest—before there could be a violation of
his Vienna Convention right to consulate notification. App. to Brief for
Respondent 32–36. In a second state habeas application, Medellín sought to
expand his claim of prejudice by contending that the State’s noncompliance with
theVienna Convention deprived him of assistance in developing mitigationevidence
during the capital phase of his trial. This argument, however, was likely
waived: Medellín had the assistance of consulate counsel 6 MEDELLIN v. TEXAS

Opinion of the Court

Appeals affirmed.

Id.,
at 64–65.

Medellín then filed a habeas petition in Federal
DistrictCourt. The District Court denied relief, holding that Medellín’s Vienna
Convention claim was procedurallydefaulted and that Medellín had failed to show
prejudicearising from the Vienna Convention violation. See

While Medellín’s application for a certificate of
appealability was pending in the Fifth Circuit, the ICJ issued itsdecision in

Avena.
The ICJ held that the United States had violated Article 36(1)(b) of the Vienna
Convention by failing to inform the 51 named Mexican nationals, including
Medellín, of their Vienna Convention rights. 2004

I. C. J., at 53–55. In the ICJ’s determination, the United
States was obligated "to provide, by means of its ownchoosing, review and
reconsideration of the convictionsand sentences of the [affected] Mexican
nationals."

Id., at

72. The ICJ indicated that such review was required without
regard to state procedural default rules.

Id., at 56–57.

The Fifth Circuit denied a certificate of appealability.

Medellín
v. Dretke,
371 F. 3d 270, 281 (2004). The court concluded that the Vienna Convention did
not confer individually enforceable rights. Id.,
at 280. The court further ruled that it was in any event bound by thisCourt’s
decision in Breard v. Greene,
523 U. S. 371, 375 (1998) (per
curiam), which held that Vienna Conventionclaims are
subject to procedural default rules, rather than by the ICJ’s contrary decision
in Avena.
371 F. 3d, at 280.

—————— during the preparation of his

first application for state postconvictionrelief, yet failed to raise
this argument at that time. See Application for Writ of Habeas Corpus in Ex parte Medellín,
No. 675430–A (Tex. Crim. App.), pp. 25–31. In light of our disposition of this
case, we neednot consider whether Medellín was prejudiced in any way by
theviolation of his Vienna Convention rights. 7 Cite as: 552 U. S. ____ (2008)

Opinion of the Court

This Court granted certiorari.

Medellín v. Dretke,
544

U. S. 660, 661 (2005) (

per
curiam) (Medellín
I). Before we heard oral argument, however, President
George W. Bush issued his Memorandum to the United States AttorneyGeneral,
providing:

I have determined, pursuant to the authority vestedin me as
President by the Constitution and the laws ofthe United States of America, that
the United States will discharge its international obligations under thedecision
of the International Court of Justice in [

Avena],
by having State courts give effect to the decision in accordance with general
principles of comity in cases filed by the 51 Mexican nationals addressed inthat
decision. App. to Pet. for Cert. 187a.

Medellín, relying on the President’s Memorandum and the ICJ’s
decision in

Avena, filed a second application forhabeas relief
in state court. Ex parte Medellín,
223 S. W. 3d 315, 322–323 (Tex. Crim. App. 2006).
Because the state-court proceedings might have provided Medellín with the review
and reconsideration he requested, and because his claim for federal relief might
otherwise have been barred, we dismissed his petition for certiorari
asimprovidently granted. Medellín I,
supra,
at 664.

The Texas Court of Criminal Appeals subsequently dismissed
Medellín’s second state habeas application as an abuse of the writ. 223 S. W.
3d, at 352. In the court’s view, neither the

Avena decision nor the President’s Memorandum was "binding federal law"
that could displace the State’s limitations on the filing of successivehabeas
applications. Ibid.
We again granted certiorari. 550 U. S. ___ (2007).

II Medellín first contends that the ICJ’s judgment in

Avena constitutes a "binding" obligation on the state and 8 MEDELLIN v. TEXAS

Opinion of the Court

federal courts of the United States. He argues that "by
virtue of the Supremacy Clause, the treaties requiringcompliance with the

Avena judgment are already the ‘Law of the Land’ by which all state and federal
courts in this country are ‘bound.’" Reply Brief for Petitioner 1. Accordingly,
Medellín argues, Avena is a binding federal rule ofdecision that pre-empts contrary
state limitations on successive habeas petitions.

No one disputes that the

Avena decision—a decision that flows from the treaties through which
the UnitedStates submitted to ICJ jurisdiction with respect to Vienna Convention
disputes—constitutes an international law obligation on the part of the United States. But not
all international law obligations automatically constitutebinding federal law
enforceable in United States courts. The question we confront here is whether
the Avena
judgment has automatic domestic legal effect such that the judgment of its own force
applies in state and federal courts.

This Court has long recognized the distinction between
treaties that automatically have effect as domestic law,and those that—while
they constitute international lawcommitments—do not by themselves function as
binding federal law. The distinction was well explained by ChiefJustice
Marshall’s opinion in

Foster v. Neilson,
2 Pet. 253, 315 (1829), overruled on other grounds, United States v. Percheman,
7 Pet. 51 (1833), which held that a treaty is"equivalent to an act of the
legislature," and hence self-executing, when it "operates of itself without the
aid of any legislative provision." Foster, supra,
at 314. When, in contrast, "[treaty] stipulations are
not self-executing theycan only be enforced pursuant to legislation to carry
theminto effect." Whitney v. Robertson,
124 U. S. 190, 194 (1888). In sum, while treaties "may comprise international
commitments . . . they are not domestic law unlessCongress has either enacted
implementing statutes or the 9 Cite as: 552 U. S. ____
(2008)

Opinion of the Court

treaty itself conveys an intention that it be
‘self-executing’ and is ratified on these terms."

A treaty is, of course, "primarily a compact
betweenindependent nations."

Head Money Cases,
112 U. S. 580, 598 (1884). It ordinarily "depends for the enforcement of its
provisions on the interest and the honor of the governments which are parties to
it." Ibid.;
see also The Federalist No. 33, p. 207 (J. Cooke ed. 1961) (A. Hamilton)
(comparing laws that individuals are "bound to observe" as "thesupreme law of
the land" with "a mere treaty, dependenton the good faith of the parties"). "If
these [interests] fail, its infraction becomes the subject of international
negotiations and reclamations . . . . It is obvious that with all this the
judicial courts have nothing to do and can give no redress." Head Money Cases,
supra, at 598. Only "[i]f the treaty contains
stipulations which are self-executing, that is, require no legislation to make
them operative, [will] they have the force and effect of a legislative
enactment." Whitney, supra,
at 194.3

—————— 2The label "self-executing" has on occasion been used to convey
different meanings. What we mean by "self-executing" is that the treatyhas
automatic domestic effect as federal law upon ratification. Conversely, a
"non-self-executing" treaty does not by itself give rise todomestically
enforceable federal law. Whether such a treaty has domestic effect depends upon
implementing legislation passed by Congress. 3Even when treaties are
self-executing in the sense that they create federal law, the background
presumption is that "[i]nternationalagreements, even those directly benefiting
private persons, generally donot create private rights or provide for a private
cause of action indomestic courts." 2 Restatement (Third) of Foreign Relations
Law ofthe United States §907, Comment

a, p. 395 (1986) (hereinafter Restatement). Accordingly, a number of
the Courts of Appeals havepresumed that treaties do not create privately
enforceable rights in the absence of express language to the contrary. See,
e.g.,
United
States v. Emuegbunam,
268 F. 3d 377, 389 (CA6 2001); United States v. Jimenez10
MEDELLIN v. TEXAS

Opinion of the Court

Medellín and his

amici nonetheless contend that the Optional Protocol, United Nations
Charter, and ICJ Statute supply the "relevant obligation" to give the Avena judgment binding effect in the domestic courts of theUnited
States. Reply Brief for Petitioner 5–6.4 Because none of these treaty sources
creates binding federal law in the absence of implementing legislation, and
because it isuncontested that no such legislation exists, we conclude that the
Avena judgment is not automatically bindingdomestic law.

A The interpretation of a treaty, like the interpretation of a statute,
begins with its text.

Air France v. Saks,
470

U. S. 392, 396–397 (1985). Because a treaty ratified by the
United States is "an agreement among sovereign powers," we have also considered
as "aids to its interpretation" the negotiation and drafting history of the
treaty as well as "the postratification understanding" of signatorynations.

As a signatory to the Optional Protocol, the UnitedStates
agreed to submit disputes arising out of the ViennaConvention to the ICJ. The
Protocol provides: "Disputesarising out of the interpretation or application of
the [Vienna] Convention shall lie within the compulsory jurisdiction of the
International Court of Justice." Art. I, 21

U. S. T., at 326. Of course, submitting to jurisdiction and
agreeing to be bound are two different things. A partycould, for example, agree
to compulsory nonbinding arbitration. Such an agreement would require the party
to appear before the arbitral tribunal without obligating theparty to treat the
tribunal’s decision as binding. See,

e.g.,
North American Free Trade Agreement, U. S.-Can.-Mex., Art. 2018(1), Dec. 17,
1992, 32 I. L. M. 605, 697 (1993) ("On receipt of the final report of [the
arbitral panel requested by a Party to the agreement], the disputing Parties
shall agree on the resolution of the dispute, which normally shall conform with
the determinations and recommendations of the panel").

The most natural reading of the Optional Protocol is as a
bare grant of jurisdiction. It provides only that"[d]isputes arising out of the
interpretation or application of the [Vienna] Convention shall lie within the
compulsoryjurisdiction of the International Court of Justice" and"may
accordingly be brought before the [ICJ] . . . by any party to the dispute being
a Party to the present Protocol." Art. I, 21 U. S. T., at 326. The Protocol says
nothing aboutthe effect of an ICJ decision and does not itself commit
signatories to comply with an ICJ judgment. The Protocol is similarly silent as
to any enforcement mechanism.

The obligation on the part of signatory nations to comply
with ICJ judgments derives not from the Optional Protocol, but rather from
Article 94 of the United Nations Char-ter—the provision that specifically
addresses the effect of ICJ decisions. Article 94(1) provides that "[e]ach
Member

12 MEDELLIN v. TEXAS

Opinion of the Court

of the United Nations

undertakes to
comply with the decision of the [ICJ] in any case to
which it is a party." 59 Stat. 1051 (emphasis added). The Executive Branch
contends that the phrase "undertakes to comply" is not "anacknowledgement that
an ICJ decision will have immediate legal effect in the courts of U. N.
members," but rather"a commitment on the part of U. N. Members to take future action through their political branches to complywith an
ICJ decision." Brief for United States as Amicus Curiae in Medellín I,
O. T. 2004, No. 04–5928, p. 34.

We agree with this construction of Article 94. The Article is not a directive
to domestic courts. It does not provide that the United States "shall" or "must"
complywith an ICJ decision, nor indicate that the Senate that ratified the U. N.
Charter intended to vest ICJ decisions with immediate legal effect in domestic
courts. Instead, "[t]he words of Article 94 . . . call upon governments to take
certain action."

Committee of
United States Citizens Living in Nicaragua v. Reagan,
859 F. 2d 929, 938 (CADC 1988) (quoting Diggs v. Richardson,
555 F. 2d 848, 851 (CADC 1976); internal quotation marks omitted). See also
Foster,
2 Pet., at 314, 315 (holding a treaty non-selfexecuting because its text—"‘all .
. . grants of land . . .shall be ratified and confirmed’"—did not "act directly
onthe grants" but rather "pledge[d] the faith of the United States to pass acts
which shall ratify and confirm them").In other words, the U. N. Charter reads
like "a compactbetween independent nations" that "depends for the enforcement of
its provisions on the interest and the honor of the governments which are
parties to it." Head Money Cases,
112 U. S., at 598.5 ——————

5We do not read "undertakes" to mean that " ‘ "[t]he United States . . .shall
be at liberty to make respecting th[e] matter, such laws as theythink proper." ’
"

Post,
at 17–18 (BREYER, J., dissenting) (quoting Todok

v.

Union State Bank of Harvard, 281 U. S. 449, 453, 454
(1930) (holdingthat a treaty with Norway did not "operat[e] to override the law of 13 Cite as: 552 U. S. ____
(2008)

Opinion of the Court

The remainder of Article 94 confirms that the U. N. Charter
does not contemplate the automatic enforceabilityof ICJ decisions in domestic
courts.

6 Article 94(2)—the
enforcement provision—provides the sole remedy for noncompliance: referral to
the United Nations SecurityCouncil by an aggrieved state. 59 Stat. 1051.

The U. N. Charter’s provision of an express diplomatic—that
is, nonjudicial—remedy is itself evidence that ICJ judgments were not meant to
be enforceable in domestic courts. See

Sanchez-Llamas,
548 U. S., at 347. And even this "quintessentially
international remed[y]," id.,
at 355, is not absolute. First, the Security Council must "dee[m] necessary" the
issuance of a recommendation or measure to effectuate the judgment. Art. 94(2),
59 Stat. 1051.Second, as the President and Senate were undoubtedlyaware in
subscribing to the U. N. Charter and Optional Protocol, the United States
retained the unqualified right to exercise its veto of any Security Council
resolution.

This was the understanding of the Executive Branch when the
President agreed to the U. N. Charter and the declaration accepting general
compulsory ICJ jurisdiction.

—————— [Nebraska] as to the disposition of homestead property")). Whether or
not the United States "undertakes" to comply with a treaty says nothing about
what laws it may enact. The United States is

always "at liberty to make . . . such laws as [it] think[s]
proper."
Id., at 453. Indeed, a later-in-time federal statute
supersedes inconsistent treaty provisions. See, e.g.,
Cook v. United States,
288 U. S. 102, 119–120 (1933). Rather, the "undertakes to comply" language
confirms thatfurther action to give effect to an ICJ judgment was contemplated,
contrary to the dissent’s position that such judgments constitute directly
enforceable federal law, without more. See also post,
at 1–3 (STEVENS, J., concurring in judgment). 6Article 94(2) provides in full:
"If any party to a case fails to perform the obligations incumbent upon it under
a judgment rendered by the Court, the other party may have recourse to the
Security Council,which may, if it deems necessary, make recommendations or
decide upon measures to be taken to give effect to the judgment." 59 Stat. 1051.
14 MEDELLIN v. TEXAS

Opinion of the Court

See,

e.g.,
The Charter of the United Nations for the Maintenance of International Peace and
Security: Hearings before the Senate Committee on Foreign Relations, 79thCong.,
1st Sess., 124–125 (1945) ("[I]f a state fails to perform its obligations under
a judgment of the [ICJ], theother party may have recourse to the Security
Council"); id., at 286 (statement of Leo Paslovsky, Special
Assistant to the Secretary of State for International Organizationsand Security
Affairs) ("[W]hen the Court has rendered a judgment and one of the parties
refuses to accept it, then the dispute becomes political rather than legal. It
is as a political dispute that the matter is referred to the SecurityCouncil");
A Resolution Proposing Acceptance of Compulsory Jurisdiction of International
Court of Justice: Hearings on S. Res. 196 before the Subcommittee of the
SenateCommittee on Foreign Relations, 79th Cong., 2d Sess., 142 (1946)
(statement of Charles Fahy, State Dept. LegalAdviser) (while parties that accept
ICJ jurisdiction have "amoral obligation" to comply with ICJ decisions,
Article94(2) provides the exclusive means of enforcement).

If ICJ judgments were instead regarded as automatically
enforceable domestic law, they would be immediately and directly binding on
state and federal courts pursuant to the Supremacy Clause. Mexico or the ICJ
would have no need to proceed to the Security Council to enforce the judgment in
this case. Noncompliance with an ICJ judgment through exercise of the Security
Council veto—always regarded as an option by the Executive and ratifying Senate
during and after consideration of the U. N.Charter, Optional Protocol, and ICJ
Statute—would nolonger be a viable alternative. There would be nothing to veto.
In light of the U. N. Charter’s remedial scheme, there is no reason to believe
that the President and Senate signed up for such a result.

In sum, Medellín’s view that ICJ decisions are automatically
enforceable as domestic law is fatally under

15 Cite as:
552 U. S. ____ (2008)

Opinion of the Court

mined by the enforcement structure established by Article

94. His construction would eliminate the option of
noncompliance contemplated by Article 94(2), underminingthe ability of the
political branches to determine whether and how to comply with an ICJ judgment.
Those sensitive foreign policy decisions would instead be transferred to state
and federal courts charged with applying an ICJjudgment directly as domestic
law. And those courts would not be empowered to decide whether to comply withthe
judgment—again, always regarded as an option by thepolitical branches—any more
than courts may considerwhether to comply with any other species of domestic
law. This result would be particularly anomalous in light of the principle that
"[t]he conduct of the foreign relations of ourGovernment is committed by the
Constitution to the Executive and Legislative—‘the political’—Departments."

Oetjen v. Central Leather
Co., 246 U. S. 297, 302 (1918).

The ICJ Statute, incorporated into the U. N. Charter,
provides further evidence that the ICJ’s judgment in

Avena does not automatically constitute federal law judicially
enforceable in United States courts. Art. 59, 59 Stat. 1062. To begin with, the
ICJ’s "principal purpose" is said to be to "arbitrate particular disputes
between national governments." Sanchez-Llamas,
supra, at 355 (citing 59 Stat. 1055). Accordingly, the
ICJ can heardisputes only between nations, not individuals. Art. 34(1), 59 Stat.
1059 ("Only states [i.e.,
countries] may be parties in cases before the [ICJ]").
More important, Article 59 ofthe statute provides that "[t]he decision of the [ICJ]
has no
binding force except between the parties and in
respect ofthat particular case." Id., at 1062 (emphasis added).7 The ——————

7Medellín alters this language in his brief to provide that
the ICJStatute makes the

Avena judgment binding "in respect of [his] particular case." Brief for
Petitioner 22 (internal quotation marks omitted).Medellín does not and cannot
have a case before the ICJ under the terms of the ICJ Statute. 16 MEDELLIN
v. TEXAS

Opinion of the Court

dissent does not explain how Medellín, an individual, can be
a party to the ICJ proceeding.

Medellín argues that because the

Avena case involves him, it is clear that he—and the 50 other Mexican
nationals named in the Avena decision—should be regarded as parties to the Avena judgment. Brief for Petitioner 21–22. But cases before the ICJ
are often precipitated by disputesinvolving particular persons or entities,
disputes that anation elects to take up as its own. See, e.g.,
Case
Concerning the Barcelona Traction, Light & Power Co. (Belg.

v.

Spain),
1970 I. C. J. 3 (Judgment of Feb. 5) (claim brought by Belgium on behalf of
Belgian nationals and shareholders); Case Concerning
the Protection of French Nationals and Protected Persons in Egypt (Fr.
v. Egypt),1950
I. C. J. 59 (Order of Mar. 29) (claim brought byFrance on behalf of French
nationals and protected persons in Egypt); Anglo-Iranian Oil
Co. Case (U.
K. v. Iran),1952
I. C. J. 93, 112 (Judgment of July 22) (claim brought by the United Kingdom on
behalf of the Anglo-Iranian OilCompany). That has never been understood to alter
the express and established rules that only nation-states may be parties before
the ICJ, Art. 34, 59 Stat. 1059, and—contrary to the position of the dissent,
post,
at 23—that ICJ judgments are binding only between those parties,Art. 59, id., at 1062.8

—————— 8The dissent concludes that the ICJ judgment is binding federal law
based in large part on its belief that the Vienna Convention overrides contrary
state procedural rules. See

post,
at 19–20, 20–21, 23. But not even Medellín relies on the Convention. See Reply
Brief for Petitioner 5 (disclaiming reliance). For good reason: Such reliance is
foreclosed bythe decision of this Court in Sanchez-Llamas,
548 U. S., at 351 (holdingthat the Convention does not preclude the application
of state procedural bars); see also id.,
at 363 (GINSBURG, J., concurring in judgment). There is no basis for
relitigating the issue. Further, to rely on the Convention would elide the
distinction between a treaty—negotiated by the President and signed by
Congress—and a judgment rendered pursuant to those treaties. 17 Cite as: 552 U.
S. ____ (2008)

Opinion of the Court

It is, moreover, well settled that the United States’
interpretation of a treaty "is entitled to great weight."

The pertinent international agreements, therefore, donot
provide for implementation of ICJ judgments through direct enforcement in
domestic courts, and "where a treatydoes not provide a particular remedy, either
expressly or implicitly, it is not for the federal courts to impose one onthe
States through lawmaking of their own."

Sanchez-Llamas,
548 U. S., at 347.

—————— 9In interpreting our treaty obligations, we also consider the views
ofthe ICJ itself, "giv[ing] respectful consideration to the interpretation of an
international treaty rendered by an international court with jurisdiction to
interpret [the treaty]."

Breard v. Greene, 523 U. S. 371, 375 (1998) (per
curiam); see Sanchez-Llamas,
supra, at 355–356. It is not clear whether that
principle would apply when the question is thebinding force of ICJ judgments
themselves, rather than the substantive scope of a treaty the ICJ must interpret
in resolving disputes. Cf. Phillips
Petroleum Co. v. Shutts,
472 U. S. 797, 805 (1985) ("[A] court adjudicating a dispute may not be able to
predetermine the res judicata effect of its own judgment"); 18 C. Wright, A.
Miller, & E. Cooper,Federal Practice and Procedure §4405, p. 82 (2d ed. 2002)
("The firstcourt does not get to dictate to other courts the preclusion
consequences of its own judgment"). In any event, nothing suggests that the
ICJviews its judgments as automatically enforceable in the domestic courts of
signatory nations. The Avena judgment itself directs the UnitedStates to provide review and
reconsideration of the affected convictions and sentences "by
means of its own choosing." 2004 I. C. J., at 72
(emphasis added). This language, as well as the ICJ’s mere suggestionthat the
"judicial process" is best suited to provide such review, id., at 65–66, confirm that domestic enforceability in court is not
part and parcel of an ICJ judgment. 18 MEDELLIN v. TEXAS

Opinion of the Court

B

The dissent faults our analysis because it "looks for the
wrong thing (explicit textual expression about self-execution) using the wrong
standard (clarity) in the wrong place (the treaty language)."

Post, at 26. Given our obligation to interpret treaty provisions to
determine whetherthey are self-executing, we have to confess that we do think it
rather important to look to the treaty language tosee what it has to say about
the issue. That is after all what the Senate looks to in deciding whether to
approve the treaty.

The interpretive approach employed by the Court
today—resorting to the text—is hardly novel. In two earlycases involving an 1819
land-grant treaty between Spain and the United States, Chief Justice Marshall
found the language of the treaty dispositive. In

Foster,
after distinguishing between self-executing treaties (those "equivalent to an
act of the legislature") and non-self-executing treaties (those "the legislature
must execute"), Chief Justice Marshall held that the 1819 treaty was non-selfexecuting.
2 Pet., at 314. Four years later, the Supreme Court considered another claim
under the same treaty,but concluded that the treaty was self-executing. See
Percheman,
7 Pet., at 87. The reason was not because the treaty was sometimes
self-executing and sometimes not, but because "the language of" the Spanish
translation (brought to the Court’s attention for the first time) indicated the
parties’ intent to ratify and confirm the land-grant "by force of the instrument
itself."
Id., at 89.

As against this time-honored textual approach, thedissent
proposes a multifactor, judgment-by-judgmentanalysis that would "jettiso[n]
relative predictability for the open-ended rough-and-tumble of factors."

Post, at 12–13 ("[T]he absence or presence of language in a treaty
about a provision’s self-execution proves nothing at all"). Determining whether
treaties themselves create federal law issometimes committed to the political
branches and sometimes to the judiciary. Post,
at 13. Of those committed to the judiciary, the courts pick and choose which
shall bebinding United States law—trumping not only state but other federal law
as well—and which shall not. Post, at 13–27. They do this on the basis of a multifactor,
"context-specific" inquiry. Post,
at 13. Even then, the same treatysometimes gives rise to United States law and
sometimesdoes not, again depending on an ad hoc judicial assessment. Post, at 13–27.

Our Framers established a careful set of procedures thatmust
be followed before federal law can be created under the Constitution—vesting
that decision in the political branches, subject to checks and balances. U. S.
Const., Art. I, §7. They also recognized that treaties could createfederal law,
but again through the political branches, withthe President making the treaty
and the Senate approving it. Art. II, §2. The dissent’s understanding of the
treaty route, depending on an ad hoc judgment of the judiciarywithout looking to
the treaty language—the very language negotiated by the President and approved
by the Senate—cannot readily be ascribed to those same Framers.

The dissent’s approach risks the United States’ involvement
in international agreements. It is hard to believe that the United States would
enter into treaties that are sometimes enforceable and sometimes not. Such a
treaty would be the equivalent of writing a blank check to the judiciary.
Senators could never be quite sure whatthe treaties on which they were voting
meant. Only ajudge could say for sure and only at some future date.This
uncertainty could hobble the United States’ efforts to

20
MEDELLIN
v. TEXAS

Opinion of the Court

negotiate and sign international agreements.

In this case, the dissent—for a grab bag of no less than
seven reasons—would tell us that this

particular ICJ judgment is federal law. Post,
at 13–27. That is no sort of guidance. Nor is it any answer to say that the
federal courts will diligently police international agreements and enforce the
decisions of international tribunals only whenthey should be enforced. Ibid.
The point of a non-selfexecuting treaty is that it "addresses itself to the
political, not the judicial department; and the legislature
mustexecute the contract before it can become a rule for the Court." Foster,
supra,
at 314 (emphasis added); Whitney,
124 U. S., at 195. See also Foster,
supra,
at 307 ("The judiciary is not that department of the government, towhich the
assertion of its interests against foreign powers is confided"). The dissent’s
contrary approach wouldassign to the courts—not the political branches—theprimary
role in deciding when and how international agreements will be enforced. To read
a treaty so that itsometimes has the effect of domestic law and sometimes does
not is tantamount to vesting with the judiciary thepower not only to interpret
but also to create the law.

C Our conclusion that

Avena does not by itself constitutebinding federal law is confirmed by
the "postratificationunderstanding" of signatory nations. See Zicherman,
516

U. S., at 226. There are currently 47 nations that are
parties to the Optional Protocol and 171 nations that are parties to the Vienna
Convention. Yet neither Medellín nor his

amici have identified a single nation that treats ICJ judgments as
binding in domestic courts.10 In
deter

—————— 10The best that the ICJ experts as

amici curiae can come up with isthe contention that local Moroccan
courts have referred to ICJ judgments as "dispositive." Brief for ICJ Experts as
Amici
Curiae 20, n. 31. Even the ICJ experts do not cite a
case so holding, and Moroccan 21 Cite as: 552 U. S. ____ (2008)

Opinion of the Court

mining that the Vienna Convention did not require certain relief in United
States courts in

Sanchez-Llamas,
we found it pertinent that the requested relief would not be available under the
treaty in any other signatory country. See 548 U. S., at 343–344, and n. 3. So
too here the lack of any basis for supposing that any other country would
treatICJ judgments as directly enforceable as a matter of its domestic law strongly suggests that the treaty should not be so
viewed in our courts.

Our conclusion is further supported by general principles of interpretation.
To begin with, we reiterated in

Sanchez-Llamas
what we held in Breard,
that "‘absent a clear and express statement to the contrary, the procedural
rules of the forum State govern the implementationof the treaty in that State.’"
548 U. S., at 351 (quoting Breard,
523 U. S., at 375). Given that ICJ judgments mayinterfere with state procedural
rules, one would expect the ratifying parties to the relevant treaties to have
clearlystated their intent to give those judgments domestic effect, if they had
so intended. Here there is no statement in the Optional Protocol, the U. N.
Charter, or the ICJ Statutethat supports the notion that ICJ judgments displace
state procedural rules.

Moreover, the consequences of Medellín’s argument give pause. An ICJ
judgment, the argument goes, is not only binding domestic law but is also
unassailable. As a result, neither Texas nor this Court may look behind a
judgment

—————— practice is at best inconsistent, for at least one local Moroccan
court has held that ICJ judgments are not binding as a matter of municipal
law.See,

Sanchez-Llamas, that this Court disagrees with both
the reasoning and result in Avena.)
Medellín’s interpretation would allow ICJ judgments to override otherwise
binding state law; there is nothing in his logic that would exempt contrary
federal law from the samefate. See, e.g.,
Cook v. United States,
288 U. S. 102, 119 (1933) (later-in-time self-executing treaty supersedes a
federal statute
if there is a conflict). And there is nothingto prevent the ICJ from ordering
state courts to annul criminal convictions and sentences, for any reason
deemedsufficient by the ICJ. Indeed, that is precisely the relief Mexico
requested. Avena, 2004 I. C. J., at 58–59.

Even the dissent flinches at reading the relevant treaties to
give rise to self-executing ICJ judgments in all cases. It admits that "Congress
is unlikely to authorize automatic judicial enforceability of

all ICJ judgments, for that could include some politically sensitive
judgments and others better suited for enforcement by other branches." Post, at 24. Our point precisely. But the lesson to draw from that
insight is hardly that the judiciary should decide which judgments are
politically sensitive and which are not.

In short, and as we observed in

Sanchez-Llamas,
"[n]othing in the structure or purpose of the ICJ suggests that its
interpretations were intended to be conclusive onour courts." 548 U. S., at 354.
Given that holding, it isdifficult to see how that same structure and purpose
can establish, as Medellín argues, that judgments of the ICJ nonetheless were intended to be conclusive on
our courts. A judgment is binding only if there is a rule of law thatmakes it
so. And the question whether ICJ judgments canbind domestic courts depends upon
the same analysisundertaken in Sanchez-Llamas
and set forth above.

Our prior decisions identified by the dissent as holding
anumber of treaties to be self-executing, see

post, at 8–9, 23 Cite as: 552 U. S. ____ (2008)

Opinion of the Court

Appendix A, stand only for the unremarkable propositionthat
some international agreements are self-executing and others are not. It is well
settled that the "[i]nterpretationof [a treaty] . . . must, of course, begin
with the language of the Treaty itself."

Sumitomo Shoji
America, Inc., 457

U. S., at 180. As a result, we have held treaties to be
self-executing when the textual provisions indicate that the President and
Senate intended for the agreement to havedomestic effect.

Medellín and the dissent cite

Comegys v. Vasse,
1 Pet. 193 (1828), for the proposition that the judgments of international
tribunals are automatically binding on domestic courts. See post, at 9; Reply Brief for Petitioner 2; Brieffor Petitioner 19–20.
That case, of course, involved a different treaty than the ones at issue here;
it stands only for the modest principle that the terms of a treaty controlthe
outcome of a case.11 We do not suggest that treatiescan never afford binding
domestic effect to international tribunal judgments—only that the U. N. Charter,
the Optional Protocol, and the ICJ Statute do not do so. And whether the
treaties underlying a judgment are self-executing so that the judgment is
directly enforceable asdomestic law in our courts is, of course, a matter for
this Court to decide. See Sanchez-Llamas,
supra,
at 353–354.

—————— 11The other case Medellín cites for the proposition that the judgments
of international courts are binding,

La Abra Silver
Mining Co. v. United States,
175 U. S. 423 (1899), and the cases he cites for the proposition that this Court
has routinely enforced treaties under which foreign nationals have asserted
rights, similarly stand only for the principle that the terms of a treaty govern
its enforcement. See Reply Brief for Petitioner 4, 5, n. 2. In each case, this
Court first interpreted the treaty prior to finding it domestically enforceable.
See, e.g.,
United
States v. Rauscher,
119 U. S. 407, 422–423 (1886) (holding that the treaty required extradition only
for specified offenses); Hopkirk v. Bell,
3 Cranch 454, 458 (1806) (holding that the treaty of peace betweenGreat Britain
and the United States prevented the operation of a statestatute of limitations
on British debts). 24 MEDELLIN v. TEXAS

Opinion of the Court

D

Our holding does not call into question the ordinary
enforcement of foreign judgments or international arbitral agreements. Indeed,
we agree with Medellín that, as a general matter, "an agreement to abide by the
result" ofan international adjudication—or what he really means, an agreement to
give the result of such adjudication domestic legal effect—can be a treaty
obligation like any other, so long as the agreement is consistent with the
Constitution. See Brief for Petitioner 20. The point isthat the particular
treaty obligations on which Medellínrelies do not of their own force create
domestic law.

The dissent worries that our decision casts doubt on some
70-odd treaties under which the United States has agreed to submit disputes to
the ICJ according to "roughly similar" provisions. See

post, at 4, 16–17. Again, underour established precedent, some treaties
are self-executing and some are not, depending on the treaty. That the judgment
of an international tribunal might not automatically become domestic law hardly
means the underlyingtreaty is "useless." See post,
at 17; cf. post, at 11 (describing the British system in which
treaties "virtually alwaysrequir[e] parliamentary legislation"). Such
judgmentswould still constitute international obligations, the proper subject of
political and diplomatic negotiations. See Head Money Cases,
112 U. S., at 598. And Congress could elect to give them wholesale effect
(rather than the judgmentby-judgment approach hypothesized by the dissent,
post,
at 24) through implementing legislation, as it regularly has. See, e.g., Foreign Affairs Reform and RestructuringAct of 1998, Pub. L.
105–277, div. G, §2242, 112 Stat. 2681–822, note following 8 U. S. C. §1231
(directing the"appropriate agencies" to "prescribe regulations to implement the
obligations of the United States under Article 3" of the Convention Against
Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment);
25 Cite as: 552 U. S. ____ (2008) Opinion of the Court

see also

infra,
at 25–26 (listing examples of legislationimplementing international
obligations).

Further, that an ICJ judgment may not be automatically
enforceable in domestic courts does not mean theparticular underlying treaty is
not. Indeed, we have held that a number of the "Friendship, Commerce, and
Navigation" Treaties cited by the dissent, see

post, Appendix B,are self-executing—based on "the language of
the[se]Treat[ies]." See Sumitomo Shoji
America, Inc., supra, at 180, 189–190. In Kolovrat v. Oregon,
366 U. S. 187, 191, 196 (1961), for example, the Court found that Yugoslavian
claimants denied inheritance under Oregon law were entitled to inherit personal
property pursuant to an 1881Treaty of Friendship, Navigation, and Commerce
between the United States and Serbia. See also Clark v. Allen,
331

U. S. 503, 507–511, 517–518 (1947) (finding that the right to
inherit real property granted German aliens under theTreaty of Friendship,
Commerce, and Consular Rights with Germany prevailed over California law).
Contrary to the dissent’s suggestion, see

post,
at 11, neither our approach nor our cases require that a treaty provide for
self-execution in so many talismanic words; that is a caricature of the Court’s
opinion. Our cases simply requirecourts to decide whether a treaty’s terms
reflect a determination by the President who negotiated it and the Senate that
confirmed it that the treaty has domestic effect.

In addition, Congress is up to the task of implementingnon-self-executing
treaties, even those involving complex commercial disputes. Cf.

post, at 24 (BREYER, J.,
dissenting). The judgments of a number of international tribunals enjoy a
different status because of implementing legislation enacted by Congress. See,
e.g.,
22 U. S. C. §1650a(a) ("An award of an arbitral tribunal rendered pursuant to
chapter IV of the [Convention on the Settlement of Investment Disputes] shall
create a right arising under a treaty of the United States. The pecuniary obliga26
MEDELLIN
v. TEXAS

Opinion of the Court

tions imposed by such an award shall be enforced and shall be
given the same full faith and credit as if the award were a final judgment of a
court of general jurisdiction of one of the several States"); 9 U. S C.
§§201–208 ("The [U. N.] Convention on the Recognition and Enforcement of Foreign
Arbitral Awards of June 10, 1958, shall beenforced in United States courts in
accordance with this chapter," §201). Such language demonstrates that Congress
knows how to accord domestic effect to international obligations when it desires
such a result.12

his case. The general rule, however, is that judgments of
foreign courts awarding injunctive relief, even as to private parties, let alone
sovereign States, "are not generallyentitled to enforcement." See 2 Restatement
§481, Comment

b, at 595.

In sum, while the ICJ’s judgment in

Avena creates an international law obligation on the part of the United
States, it does not of its own force constitute binding federal law that
pre-empts state restrictions on the filing ofsuccessive habeas petitions. As we
noted in
Sanchez-Llamas, a contrary conclusion would be
extraordinary,given that basic rights guaranteed by our own Constitution do not
have the effect of displacing state proceduralrules. See 548 U. S., at 360.
Nothing in the text, background, negotiating and drafting history, or
practiceamong signatory nations suggests that the President or Senate intended
the improbable result of giving the judgments of an international tribunal a
higher status thanthat enjoyed by "many of our most fundamental constitutional
protections." Ibid.

III Medellín next argues that the ICJ’s judgment in

Avena is binding on state courts by virtue of the President’s February
28, 2005 Memorandum. The United States contends that while the Avena judgment does not of itsown force require domestic courts to set
aside ordinaryrules of procedural default, that judgment became the law of the
land with precisely that effect pursuant to the President’s Memorandum and his
power "to establish binding rules of decision that preempt contrary state law."
Brief for United States as Amicus Curiae 5. Accordingly,we must decide whether the President’s
declaration alters our conclusion that the Avena judgment is not a rule of 28 MEDELLIN
v. TEXAS

Opinion of the Court

domestic law binding in state and federal courts.13

A The United States maintains that the President’s constitutional role
"uniquely qualifies" him to resolve the sensitive foreign policy decisions that
bear on compliancewith an ICJ decision and "to do so expeditiously." Brief for
United States as

Amicus Curiae 11, 12. We do not question these propositions. See, e.g.,
First Nat.
City Bank v. Banco Nacional de
Cuba, 406 U. S. 759, 767 (1972) (plurality opinion)
(The President has "the lead role . . . inforeign policy"); American Ins.
Assn. v. Garamendi,
539

U. S. 396, 414 (2003) (Article II of the Constitution places with the
President the "‘vast share of responsibility for theconduct of our foreign
relations’" (quoting

Youngstown Sheet
& Tube Co. v. Sawyer,
343 U. S. 579, 610–611 (1952) (Frankfurter, J., concurring)). In this case, the
President seeks to vindicate United States interests in ensuring the reciprocal
observance of the Vienna Convention, protecting relations with foreign
governments, and demonstrating commitment to the role of international law.
These interests are plainly compelling.

Such considerations, however, do not allow us to set aside first principles.
The President’s authority to act, as with the exercise of any governmental
power, "must stemeither from an act of Congress or from the Constitutionitself."

13The dissent refrains from deciding the issue, but finds it "difficultto
believe that in the exercise of his Article II powers pursuant to a ratified
treaty, the President can

never take action that would result in setting aside state law." Post,
at 29. We agree. The questions here arethe far more limited ones of whether he
may unilaterally create federal law by giving effect to the judgment of this
international tribunalpursuant to this non-self-executing treaty, and, if not,
whether he mayrely on other authority under the Constitution to support the
actiontaken in this particular case. Those are the only questions we decide. 29
Cite as: 552 U. S. ____ (2008)

Opinion of the Court

Justice Jackson’s familiar tripartite scheme provides
theaccepted framework for evaluating executive action in this area. First, "[w]hen
the President acts pursuant to anexpress or implied authorization of Congress,
his authorityis at its maximum, for it includes all that he possesses in his own
right plus all that Congress can delegate."

Youngstown,
343 U. S., at 635 (Jackson, J., concurring).Second, "[w]hen the President acts
in absence of either a congressional grant or denial of authority, he can only
relyupon his own independent powers, but there is a zone oftwilight in which he
and Congress may have concurrent authority, or in which its distribution is
uncertain." Id., at

637. In this circumstance, Presidential authority can derive
support from "congressional inertia, indifference or quiescence."

Ibid.
Finally, "[w]hen the President takesmeasures incompatible with the expressed or
implied will of Congress, his power is at its lowest ebb," and the Courtcan
sustain his actions "only by disabling the Congressfrom acting upon the
subject."
Id., at 637–638.

B The United States marshals two principal arguments infavor of the
President’s authority "to establish bindingrules of decision that preempt
contrary state law." Brief for United States as

Amicus Curiae 5. The Solicitor General first argues that the relevant
treaties give the President the authority to implement the Avena judgment and that Congress has acquiesced in the exercise of such
authority. The United States also relies upon an "independent" international
dispute-resolution power wholly apart from the asserted authority based on the
pertinent treaties. Medellín adds the additional argument that thePresident’s
Memorandum is a valid exercise of his power to take care that the laws be
faithfully executed. 30 MEDELLIN v. TEXAS

Opinion of the Court

1 The United States maintains that the President’s Memorandum is authorized
by the Optional Protocol andthe U. N. Charter. Brief for United States as

Amicus Curiae 9. That is, because the relevant treaties "create an
obligation to comply with Avena,"
they "implicitly
give thePresident authority to implement that
treaty-based obligation." Id.,
at 11 (emphasis added). As a result, the President’s Memorandum is well grounded
in the first category of the Youngstown framework. We disagree. The President has an array of
political and diplomatic means available to enforce internationalobligations,
but unilaterally converting a non-selfexecuting treaty into a self-executing one
is not among them. The responsibility for transforming an international
obligation arising from a non-self-executing treaty into domestic law falls to
Congress.
Foster, 2 Pet., at 315; Whitney,
124 U. S., at 194; Igartúa-De La
Rosa, 417 F. 3d, at 150. As this Court has explained,
when treaty stipulations are "not self-executing they can only be enforced
pursuant to legislation to carry them into effect." Whitney, supra,
at 194. Moreover, "[u]ntil such act shall be passed, the Court is not at liberty
to disregard the existing laws onthe subject." Foster, supra,
at 315. The requirement that Congress, rather than the President, implement a
non-self-executing treaty derives from the text of the Constitution, which
divides the treaty-making power between the President and the Senate. The
Constitution vests the President with the authority to"make" a treaty. Art. II,
§2. If the Executive determines that a treaty should have domestic effect of its
own force, that determination may be implemented "in mak[ing]" the treaty, by
ensuring that it contains language plainly providing for domestic
enforceability. If the treaty is to be self-executing in this respect, the
Senate must consent to the treaty by the requisite two-thirds vote, ibid., consis31 Cite as: 552 U. S. ____
(2008)

Opinion of the Court

tent with all other constitutional restraints.

Once a treaty is ratified without provisions clearlyaccording
it domestic effect, however, whether the treatywill ever have such effect is
governed by the fundamentalconstitutional principle that "‘[t]he power to make
thenecessary laws is in Congress; the power to execute in the President.’"

Hamdan v. Rumsfeld,
548 U. S. 557, 591 (2006) (quoting Ex parte Milligan,
4 Wall. 2, 139 (1866) (opinion of Chase, C. J.)); see U. S. Const., Art. I, §1
("All legislative Powers herein granted shall be vested in a Congress of the
United States"). As already noted, theterms of a non-self-executing treaty can
become domestic law only in the same way as any other law—throughpassage of
legislation by both Houses of Congress, combined with either the President’s
signature or a congressional override of a Presidential veto. See Art. I, §7.
Indeed, "the President’s power to see that the laws arefaithfully executed
refutes the idea that he is to be a lawmaker." Youngstown,
343 U. S., at 587.

A non-self-executing treaty, by definition, is one that was
ratified with the understanding that it is not to havedomestic effect of its own
force. That understanding precludes the assertion that Congress has implicitly
authorized the President—acting on his own—to achieve precisely the same result.
We therefore conclude, given the absence of congressional legislation, that the
non-selfexecuting treaties at issue here did not "express[ly] or implied[ly]"
vest the President with the unilateral authority to make them self-executing.
See

id.,
at 635 (Jackson, J., concurring). Accordingly, the
President’s Memorandumdoes not fall within the first category of the Youngstownframework.

Indeed, the preceding discussion should make clear that the
non-self-executing character of the relevant treaties not only refutes the
notion that the ratifying parties vested the President with the authority to
unilaterally

32 MEDELLIN v. TEXAS

Opinion of the Court

make treaty obligations binding on domestic courts, but also
implicitly prohibits him from doing so. When the President asserts the power to
"enforce" a non-selfexecuting treaty by unilaterally creating domestic law,
heacts in conflict with the implicit understanding of theratifying Senate. His
assertion of authority, insofar as itis based on the pertinent
non-self-executing treaties, istherefore within Justice Jackson’s third
category, not thefirst or even the second. See

id., at 637–638.

Each of the two means described above for giving domestic
effect to an international treaty obligation under the Constitution—for making
law—requires joint action by the Executive and Legislative Branches: The Senate
can ratify a self-executing treaty "ma[de]" by the Executive, or, if the
ratified treaty is not self-executing, Congress can enact implementing
legislation approved by thePresident. It should not be surprising that our
Constitution does not contemplate vesting such power in the Executive alone. As
Madison explained in The Federalist No. 47, under our constitutional system of
checks and balances, "[t]he magistrate in whom the whole executivepower resides
cannot of himself make a law." J. Cooke ed.,

p. 326 (1961). That would, however, seem an apt description
of the asserted executive authority unilaterally to give the effect of domestic
law to obligations under a non-selfexecuting treaty.

The United States nonetheless maintains that the President’s
Memorandum should be given effect as domestic law because "this case involves a
valid Presidential action in the context of Congressional ‘acquiescence’."Brief
for United States as

however, as we have explained, the President’s effort
toaccord domestic effect to the

Avena judgment does not meet that prerequisite.

In any event, even if we were persuaded that congressional
acquiescence could support the President’s asserted authority to create domestic
law pursuant to a non-selfexecuting treaty, such acquiescence does not exist
here. The United States first locates congressional acquiescence in Congress’s
failure to act following the President’s resolution of prior ICJ controversies.
A review of the Executive’s actions in those prior cases, however, cannot
support the claim that Congress acquiesced in this particularexercise of
Presidential authority, for none of them remotely involved transforming an
international obligation into domestic law and thereby displacing state law.14

—————— 14Rather, in the

Case Concerning
Military and Paramilitary Activities in and Against Nicaragua (Nicar.
v. U. S.),
1986 I. C. J. 14 (Judgment of June 27), the President determined that the United
Stateswould not comply with the ICJ’s conclusion that the
United States owedreparations to Nicaragua. In the Case Concerning
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can.
v. U. S.),
1984

I. C. J. 246 (Judgment of Oct. 12), a federal agency—the
National Oceanic and Atmospheric Administration—issued a final rule which
complied with the ICJ’s boundary determination. The

Case Concerning
Rights of Nationals of the United States of America in Morocco (Fr.
v.

U. S.

), 1952 I. C. J. 176 (Judgment
of Aug. 27), concerned the legal status of United States citizens living in
Morocco; it was not enforced in United States courts.

The final two cases arose under the Vienna Convention. In the

La-grand
Case (F.
R. G. v. U. S.),
2001 I. C. J. 466 (Judgment of June 27), the ICJ ordered the review and
reconsideration of convictions and sentences of German nationals denied consular
notification. In response, the State Department sent letters to the States "encouraging"them
to consider the Vienna Convention in the clemency process. Brief for United
States as
Amicus Curiae 20–21. Such encouragement did not give
the ICJ judgment direct effect as domestic law; thus, it cannot serve as
precedent for doing so in which Congress might be said to haveacquiesced. In the
Case
Concerning the Vienna Convention on Consular Relations (Para.
v. U. S.),
1998 I. C. J. 248 (Judgment of Apr. 9), the 34 MEDELLIN v. TEXAS

Opinion of the Court

The United States also directs us to the President’s "related" statutory
responsibilities and to his "established role" in litigating foreign policy
concerns as support for the President’s asserted authority to give the ICJ’s
decision in

Avena the force of domestic law. Brief for United
States as
Amicus Curiae 16–19. Congress has indeed authorizedthe
President to represent the United States before theUnited Nations, the ICJ, and
the Security Council, 22

U. S. C. §287, but the authority of the President to represent the United
States before such bodies speaks to thePresident’s

international responsibilities, not any unilateral authority to create
domestic law. The authorityexpressly conferred by Congress in the international
realm cannot be said to "invite" the Presidential action at issue here. See
Youngstown, supra, at 637 (Jackson, J., concurring).
At bottom, none of the sources of authority identified by the United States
supports the President’s claimthat Congress has acquiesced in his asserted power
to establish on his own federal law or to override state law.

None of this is to say, however, that the combination of a non-self-executing
treaty and the lack of implementinglegislation precludes the President from
acting to comply with an international treaty obligation. It is only to say that
the Executive cannot unilaterally execute a non-self

—————— ICJ issued a provisional order, directing the United States to "

take
all measures at its disposal to ensure that [Breard]
is not executed pendingthe final decision in [the ICJ’s] proceedings." Breard,
523 U. S., at 374 (internal quotation marks omitted). In response, the Secretary
of Statesent a letter to the Governor of Virginia requesting that he
stayBreard’s execution. Id.,
at 378. When Paraguay sought a stay ofexecution from this Court, the United
States argued that it had takenevery measure at its disposal: because "our
federal system imposes limits on the federal government’s ability to interfere
with the criminaljustice systems of the States," those measures included "only
persuasion," not "legal compulsion." Brief for United States as Amicus Curiae,

executing treaty by giving it domestic effect. That is, the
non-self-executing character of a treaty constrains thePresident’s ability to
comply with treaty commitments by unilaterally making the treaty binding on
domestic courts. The President may comply with the treaty’s obligations bysome
other means, so long as they are consistent with the Constitution. But he may
not rely upon a non-selfexecuting treaty to "establish binding rules of
decisionthat preempt contrary state law." Brief for United States as

Amicus Curiae 5.

2 We thus turn to the United States’ claim that— independent of the United
States’ treaty obligations—the Memorandum is a valid exercise of the President’s
foreignaffairs authority to resolve claims disputes with foreign nations.

Id.,
at 12–16. The United States relies on a series of cases in which this Court has
upheld the authority of the President to settle foreign claims pursuant to an
executive agreement. See Garamendi,
539 U. S., at 415; Dames & Moore,
453 U. S., at 679–680; United States v. Pink,
315 U. S. 203, 229 (1942); United States v. Belmont,
301 U. S. 324, 330 (1937). In these cases this Court has explained that, if
pervasive enough, a history of congressional acquiescence can be treated as a
"gloss on ‘Executive Power’ vested in the President by §1 of Art. II." Dames & Moore,
supra, at 686 (some internal quotation marks omitted). This
argument is of a different nature than the one rejected above. Rather than
relying on the United States’ treaty obligations, the President relies on an
independent source of authority in ordering Texas to put aside itsprocedural bar
to successive habeas petitions. Nevertheless, we find that our claims-settlement
cases do not support the authority that the President asserts in this case.The
claims-settlement cases involve a narrow set of 36
MEDELLIN
v. TEXAS

Opinion of the Court

circumstances: the making of executive agreements tosettle
civil claims between American citizens and foreigngovernments or foreign
nationals. See,

e.g.,
Belmont,
supra, at 327. They are based on the view that "a
systematic, unbroken, executive practice, long pursued to the knowledge of the
Congress and never before questioned," can "raise a presumption that the
[action] had been[taken] in pursuance of its consent." Dames & Moore,
supra, at 686 (some internal quotation marks omitted).
As this Court explained in Garamendi,

Making executive agreements to settle claims of American
nationals against foreign governments is a particularly longstanding practice .
. . . Given the fact that the practice goes back over 200 years, and has
received congressional acquiescence throughout its history, the conclusion that
the President’s control of foreign relations includes the settlement of claims
is indisputable. 539 U. S., at 415 (internal quotation marks and brackets
omitted).

Even still, the limitations on this source of executive power
are clearly set forth and the Court has been carefulto note that "[p]ast
practice does not, by itself, createpower."

Dames & Moore,
supra, at 686.

The President’s Memorandum is not supported by a
"particularly longstanding practice" of congressional acquiescence, see

Garamendi, supra,
at 415, but rather is what the United States itself
has described as "unprecedented action," Brief for United States as Amicus Curiae in Sanchez-Llamas,
O. T. 2005, Nos. 05–51 and 04–10566, pp. 29–30. Indeed, the Government has not
identified a single instance in which the President has attempted (orCongress
has acquiesced in) a Presidential directive issuedto state courts, much less one
that reaches deep into the heart of the State’s police powers and compels state
courtsto reopen final criminal judgments and set aside neutrally 37 Cite as: 552 U. S. ____ (2008)

3 Medellín argues that the President’s Memorandum is avalid exercise of his
"Take Care" power. Brief for Petitioner 28. The United States, however, does not
rely uponthe President’s responsibility to "take Care that the Lawsbe faithfully
executed." U. S. Const., Art. II, §3. We think this a wise concession. This
authority allows the President to execute the laws, not make them. For the
reasons we have stated, the

Avena judgment is not domestic law;accordingly, the President cannot
rely on his Take Carepowers here.The judgment of the Texas Court of Criminal
Appeals is affirmed.

It is so ordered.

_________________
_________________ 1 Cite as: 552 U. S. ____ (2008)

STEVENS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

No. 06–984

JOSE ERNESTO MEDELLIN, PETITIONER

v. TEXAS

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF
TEXAS

[March 25, 2008]

J

USTICE STEVENS,
concurring in the judgment.

There is a great deal of wisdom in J

USTICE
BREYER’s
dissent. I agree that the text and history of the Supremacy Clause, as well as
this Court’s treaty-related cases, do not support a presumption against
self-execution. See post,
at 5–10. I also endorse the proposition that the Vienna Convention on Consular
Relations, Apr. 24, 1963, [1970] 21 U. S. T. 77, T. I. A. S. No. 6820, "is
itself self-executing and judicially enforceable." Post,
at 19. Moreover, I think this case presents a closer question than theCourt’s
opinion allows. In the end, however, I am persuaded that the relevant treaties
do not authorize this Court to enforce the judgment of the International Courtof
Justice (ICJ) in Case Concerning
Avena and Other Mexican Nationals (Mex.
v. U. S.),
2004 I. C. J. 12 (Judgment of Mar. 31) (Avena).

The source of the United States’ obligation to complywith
judgments of the ICJ is found in Article 94(1) of the United Nations Charter,
which was ratified in 1945. Article 94(1) provides that "[e]ach Member of the
UnitedNations

undertakes to
comply with the decision of the [ICJ] in any case to
which it is a party." 59 Stat. 1051,

T. S. No. 993 (emphasis added). In my view, the
words"undertakes to comply"—while not the model of either a self-executing or a
non-self-executing commitment—aremost naturally read as a promise to take
additional steps

2 MEDELLIN v. TEXAS

STEVENS, J., concurring in judgment

to enforce ICJ judgments.

Unlike the text of some other treaties, the terms of the
United Nations Charter do not necessarily incorporate international judgments
into domestic law. Cf.,

N. T. S. 570 ("[D]ecisions of the [Seabed Disputes] Chamber shall be
enforceable in the territories of the States Parties in the same manner as
judgments or orders of the highest court of the State Party in whose
territorythe enforcement is sought"). Moreover, Congress has passed implementing
legislation to ensure the enforcement of other international judgments, even
when theoperative treaty provisions use far more mandatory language than
"undertakes to comply."

1

On the other hand Article 94(1) does not contain the kind of
unambiguous language foreclosing self-executionthat is found in other treaties.
The obligation to undertake to comply with ICJ decisions is more consistent
withself-execution than, for example, an obligation to enact legislation. Cf.,

1See, e.g., Convention on the Settlement of Investment Disputesbetween States
and Nationals of Other States (ICSID Convention), Art. 54(1), Mar. 18, 1965,
[1966] 17 U. S. T. 1291, T. I. A. S. No. 6090 ("EachContracting State shall
recognize an award rendered pursuant to thisConvention as binding and enforce
the pecuniary obligations imposedby that award within its territories as if it
were a final judgment of acourt in that State"); 22 U. S. C. §1650a ("An award
of an arbitraltribunal rendered pursuant to chapter IV of the [ICSID Convention]
shall create a right arising under a treaty of the United States. The pecuniary
obligations imposed by such an award shall be enforced andshall be given the
same full faith and credit as if the award were a final judgment of a court of
general jurisdiction of one of the several States"). 3 Cite as: 552 U. S. ____
(2008)

STEVENS, J., concurring in judgment

more, whereas the Senate has issued declarations of nonself-execution
when ratifying some treaties, it did not doso with respect to the United Nations
Charter.

2

Absent a presumption one way or the other, the best reading
of the words "undertakes to comply" is, in myjudgment, one that contemplates
future action by the political branches. I agree with the dissenters that
"Congress is unlikely to authorize automatic judicial enforceability of

all ICJ judgments, for that could include some politically sensitive
judgments and others better suited for enforcement by other branches." Post,
at 24. But this concern counsels in favor of reading any ambiguity inArticle
94(1) as leaving the choice of whether to complywith ICJ judgments, and in what
manner, "to the political, not the judicial department." Foster v. Neilson,
2 Pet. 253, 314 (1829).3

The additional treaty provisions cited by the dissent do not
suggest otherwise. In an annex to the United Nations Charter, the Statute of the
International Court of Justice (ICJ Statute) states that a decision of the ICJ
"has no binding force except between the parties and in respect ofthat
particular case." Art. 59, 59 Stat. 1062. Because I read that provision as
confining, not expanding, the effect of ICJ judgments, it does not make the
undertaking tocomply with such judgments any more enforceable than

—————— 2Cf.,

e.g.,
U. S. Reservations, Declarations and Understandings, International Covenant on
Civil and Political Rights, 138 Cong. Rec. 8071(1992) ("[T]he United States
declares that the provisions of Articles 1 through 27 of the Covenant are not
self-executing"). 3Congress’ implementation options are broader than the dissent
suggests. In addition to legislating judgment-by-judgment, enforcing all
judgments indiscriminately, and devising "legislative bright lines," post,
at 24, Congress could, for example, make ICJ judgments enforceable upon the
expiration of a waiting period that gives the politicalbranches an opportunity
to intervene. Cf., e.g., 16 U. S. C. §1823 (imposing a 120-day waiting period before
international fishery agreements take effect). 4 MEDELLIN v. TEXAS

STEVENS, J., concurring in judgment

the terms of Article 94(1) itself. That the judgment
is"binding" as a matter of international law says nothingabout its domestic
legal effect. Nor in my opinion does thereference to "compulsory jurisdiction"
in the OptionalProtocol Concerning the Compulsory Settlement of Disputes to the
Vienna Convention, Art. I, Apr. 24, 1963,[1970] 21 U. S. T. 325, T. I. A. S. No.
6820, shed any lighton the matter. This provision merely secures the consent of
signatory nations to the specific jurisdiction of the ICJ with respect to claims
arising out of the Vienna Convention. See ICJ Statute, Art. 36(1), 59 Stat. 1060
("The jurisdiction of the Court comprises . . . all matters specially provided
for . . . in treaties and conventions inforce").

Even though the ICJ’s judgment in

Avena is not "the supreme Law of the Land," U. S. Const., Art. VI, cl.
2, no one disputes that it constitutes an international law obligation on the
part of the United States. Ante,
at 8. Byissuing a memorandum declaring that state courts should give effect to
the judgment in Avena,
the President made a commendable attempt to induce the States to dischargethe
Nation’s obligation. I agree with the Texas judges and the majority of this
Court that the President’s memorandum is not binding law. Nonetheless, the fact
that the President cannot legislate unilaterally does not absolvethe United
States from its promise to take action necessary to comply with the ICJ’s
judgment.

Under the express terms of the Supremacy Clause, theUnited
States’ obligation to "undertak[e] to comply" withthe ICJ’s decision falls on
each of the States as well as the Federal Government. One consequence of our
form of government is that sometimes States must shoulder theprimary
responsibility for protecting the honor and integrity of the Nation. Texas’ duty
in this respect is all the greater since it was Texas that—by failing to provide
consular notice in accordance with the Vienna Conven

5 Cite
as: 552 U. S. ____ (2008) STEVENS, J., concurring in judgment

tion—ensnared the United States in the current controversy.
Having already put the Nation in breach of one treaty, it is now up to Texas to
prevent the breach of another.

The decision in

Avena merely obligates the UnitedStates "to provide, by means of its
own choosing, reviewand reconsideration of the convictions and sentences of the
[affected] Mexican nationals," 2004 I. C. J., at 72, ¶153(9), "with a view to
ascertaining" whether the failure to provide proper notice to consular officials
"caused actual prejudice to the defendant in the process of administration of
criminal justice," id.,
at 60, ¶121. The cost to Texas of complying with Avena would be minimal, particularly given the remote likelihood that
the violation of the Vienna Convention actually prejudiced José Ernesto Medellín.
See ante,
at 4–6, and n. 1. It is a cost that the State of Oklahoma unhesitatingly
assumed.4

—————— 4In

Avena,
the ICJ expressed "great concern" that Oklahoma had set the date of execution
for one of the Mexican nationals involved in the judgment, Osbaldo Torres, for
May 18, 2004. 2004 I. C. J., at 28, ¶21. Responding to Avena,
the Oklahoma Court of Criminal Appeals stayed Torres’ execution and ordered an
evidentiary hearing on whether Torres had been prejudiced by the lack of
consular notification. See Torres v. Oklahoma,
No. PCD–04–442 (May 13, 2004), 43 I. L. M. 1227. On the same day, the Governor
of Oklahoma commuted Torres’ death sentence to life without the possibilityof
parole, stressing that (1) the United States signed the Vienna Convention, (2)
that treaty is "important in protecting the rights of American citizens abroad,"
(3) the ICJ ruled that Torres’ rights had been violated, and (4) the U. S. State
Department urged his office to give careful consideration to the United States’
treaty obligations. See Office of Governor Brad Henry, Press Release: Gov. Henry
GrantsClemency to Death Row Inmate Torres (May 13, 2004), online athttp://www.ok.gov/governor/display_article.php?article_id=301&article_type=1
(as visited Mar. 20, 2008, and available in Clerk of Court’s casefile). After
the evidentiary hearing, the Oklahoma Court of CriminalAppeals held that Torres
had failed to establish prejudice with respect to the guilt phase of his trial,
and that any prejudice with respect to thesentencing phase had been mooted by
the commutation order. Torres v. 6 MEDELLIN v. TEXAS

STEVENS, J., concurring in judgment

On the other hand, the costs of refusing to respect theICJ’s
judgment are significant. The entire Court and the President agree that breach
will jeopardize the United States’ "plainly compelling" interests in "ensuring
thereciprocal observance of the Vienna Convention, protecting relations with
foreign governments, and demonstrating commitment to the role of international
law."

Ante,
at

28. When the honor of the Nation is balanced against the
modest cost of compliance, Texas would do well to recognize that more is at
stake than whether judgments of the ICJ, and the principled admonitions of the
President of the United States, trump state procedural rules in the absence of
implementing legislation.

The Court’s judgment, which I join, does not foreclosefurther
appropriate action by the State of Texas.

The Constitution’s Supremacy Clause provides that "allTreaties
. . . which shall be made . . . under the Authorityof the United States, shall
be the supreme Law of theLand; and the Judges in every State shall be bound
thereby." Art. VI, cl. 2. The Clause means that the "courts" must regard "a
treaty . . . as equivalent to an act of the legislature, whenever it operates of
itself without the aid of any legislative provision

Avena case the International Court of Justice (ICJ) (interpreting and
applying the Vienna Convention on Consular Relations) issued a judgment that
requires the United States to reexamine certain criminal proceedings in the
cases of 51 Mexican nationals. Case Concerning
Avena and Other Mexican Nationals (Mex. v. U. S.),
2004 I. C. J. 12 (Judgment of Mar. 31) (Avena).
The question here is whether the ICJ’s Avena judgment is en- forceable now as a matter of domestic law, i.e.,
whether it "operates of itself without the aid" of any furtherlegislation.

The United States has signed and ratified a series oftreaties
obliging it to comply with ICJ judgments in cases in which it has given its
consent to the exercise of theICJ’s adjudicatory authority. Specifically, the
United

T. I. A. S. No. 6820 (capitalization altered). And it
agreedthat the ICJ’s judgments would have "binding force . . . between the
parties and in respect of [a] particular case."United Nations Charter, Art. 59,
59 Stat. 1062, T. S. No. 993 (1945). President Bush has determined that domestic
courts should enforce this particular ICJ judgment.Memorandum to the Attorney
General (Feb. 28, 2005), App. to Pet. for Cert. 187a (hereinafter President’s
Memorandum). And Congress has done nothing to suggest the contrary. Under these
circumstances, I believe the treatyobligations, and hence the judgment, resting
as it doesupon the consent of the United States to the ICJ’s jurisdiction, bind
the courts no less than would "an act of the [federal] legislature."

Foster,
supra,
at 314.

I To understand the issue before us, the reader must keepin mind three
separate ratified United States treaties andone ICJ judgment against the United
States. The first treaty, the Vienna Convention, contains two relevant
provisions. The first requires the United States and othersignatory nations to
inform arrested foreign nationals of their separate Convention-given right to
contact their nation’s consul. The second says that these rights (of anarrested
person) "shall be exercised in conformity with the laws and regulations" of the
arresting nation,

The second treaty, the Optional Protocol, concerns
the"compulsory settlement" of Vienna Convention disputes.21 U. S. T., at 326. It
provides that for parties that elect to subscribe to the Protocol, "[d]isputes
arising out of the interpretation or application of the [Vienna] Convention"
shall be submitted to the "compulsory jurisdiction of the International Court of
Justice." Art. I,

ibid. It authorizes any party that has consented to the ICJ’s
jurisdiction (by signing the Optional Protocol) to bring another such
partybefore that Court. Ibid.

The third treaty, the United Nations Charter, says thatevery
signatory Nation "undertakes to comply with thedecision of the International
Court of Justice in any caseto which it is a party." Art. 94(1), 59 Stat. 1051.
In an annex to the Charter, the Statute of the International Court of Justice
states that an ICJ judgment has "binding force . . . between the parties and in
respect of that particular case." Art. 59,

id., at 1062. See also Art. 60, id., at 1063 (ICJ "judgment is final and without appeal").

The judgment at issue is the ICJ’s judgment in

Avena, a case that Mexico brought against the United States on
behalf of 52 nationals arrested in different States on different criminal
charges. 2004 I. C. J., at 39. Mexico claimed that state authorities within the
United States had failed to notify the arrested persons of their Vienna
Convention rights and, by applying state procedural law in a manner which did
not give full effect to the Vienna Convention rights, had deprived them of an
appropriateremedy. Ibid. The ICJ judgment in Avena requires thatthe United States reexamine "by means of its own
choosing" certain aspects of the relevant state criminal proceedings of 51 of
these individual Mexican nationals. Id., at

62. The President has determined that this should be done.
See President’s Memorandum.

The critical question here is whether the SupremacyClause
requires Texas to follow,

i.e.,
to enforce, this ICJ 4 MEDELLIN v. TEXAS

BREYER, J., dissenting

judgment. The Court says "no." And it reaches its negative
answer by interpreting the labyrinth of treaty provisions as creating a legal
obligation that binds the United States internationally, but which, for
Supremacy Clausepurposes, is not automatically enforceable as domestic law. In
the majority’s view, the Optional Protocol simply sends the dispute to the ICJ;
the ICJ statute says that the ICJ will subsequently reach a judgment; and the U.
N. Charter contains no more than a promise to "‘undertak[e]to comply’" with that
judgment.

Ante, at 3. Such a promise, the majority says, does
not as a domestic law matter (in Chief Justice Marshall’s words) "operat[e] of
itself without the aid of any legislative provision." Foster,
2 Pet., at 314. Rather, here (and presumably in any otherICJ judgment rendered
pursuant to any of the approximately 70 U. S. treaties in force that contain
similar provisions for submitting treaty-based disputes to the ICJ for decisions
that bind the parties) Congress must enact specific legislation before ICJ
judgments entered pursuant to our consent to compulsory ICJ jurisdiction can
become domestic law. See Brief for International Court of Justice Experts as
Amici
Curiae 18 ("Approximately 70 U. S.treaties now in
force contain obligations comparable tothose in the Optional Protocol for
submission of treaty-based disputes to the ICJ"); see also id., at 18, n. 25.

In my view, the President has correctly determined
thatCongress need not enact additional legislation. The majority places too much
weight upon treaty language that says little about the matter. The words "undertak[e]
to comply," for example, do not tell us whether an ICJ judgment rendered
pursuant to the parties’ consent to compulsory ICJ jurisdiction does, or does
not, automatically become part of our domestic law. To answer that question we
must look instead to our own domestic law, in particular, to the many
treaty-related cases interpreting the Supremacy Clause. Those cases, including
some written

5 Cite as: 552 U. S. ____ (2008)

BREYER, J., dissenting

by Justices well aware of the Founders’ original intent,lead
to the conclusion that the ICJ judgment before us is enforceable as a matter of
domestic law without further legislation.

A Supreme Court case law stretching back more than 200 years helps explain
what, for present purposes, the Founders meant when they wrote that "all
Treaties . . . shall bethe supreme Law of the Land." Art. VI, cl. 2. In 1796,
for example, the Court decided the case of

Ware v. Hylton,
3 Dall. 199. A British creditor sought payment of an American’s Revolutionary
War debt. The debtor argued that he had, under Virginia law, repaid the debt by
complying with a state statute enacted during the Revolutionary War that
required debtors to repay money owed to Britishcreditors into a Virginia state
fund. Id.,
at 220–221 (opinion of Chase, J.). The creditor,
however, claimed that this state-sanctioned repayment did not count because a
provision of the 1783 Paris Peace Treaty between Britain and the United States
said that "‘the creditors of either side should meet with no lawful impediment
to the recovery of the full value . . . of all bona fide debts, theretofore contracted’"; and that provision, the
creditor argued, effectively nullified the state law. Id.,
at 203–204. The Court, with each Justice writing separately, agreed with the
British creditor, held the Virginia statute invalid, and found that the American
debtor remained liable for the debt. Id., at 285. The key fact relevant here is that Congress had not
enacted a specific statute enforcing the treaty provision atissue. Hence the
Court had to decide whether the provision was (to put the matter in present
terms) "selfexecuting." Justice Iredell, a member of North Carolina’s Ratifying
Convention, addressed the matter specifically,setting forth views on which
Justice Story later relied to 6 MEDELLIN v. TEXAS

BREYER, J., dissenting

explain the Founders’ reasons for drafting the Supremacy
Clause. 3 J. Story, Commentaries on the Constitution of the United States
696–697 (1833) (hereinafter Story). See Vázquez, The Four Doctrines of
Self-Executing Treaties,89 Am. J. Int’l L. 695, 697–700 (1995) (hereinafterVázquez)
(describing the history and purpose of the Supremacy Clause). See also Flaherty,
History Right?: Historical Scholarship, Original Understanding, and Treaties as
"Supreme Law of the Land", 99 Colum. L. Rev. 2095 (1999) (contending that the
Founders crafted the Supremacy Clause to make ratified treaties self-executing).
But see Yoo, Globalism and the Constitution: Treaties, NonSelf-Execution, and
the Original Understanding, 99 Colum. L. Rev. 1955 (1999).

Justice Iredell pointed out that some Treaty provisions,those,
for example, declaring the United States an independent Nation or acknowledging
its right to navigate the Mississippi River, were "

executed,"
taking effect automatically upon ratification. 3 Dall.,
at 272. Other provisionswere "executory," in the sense
that they were "to be carried into execution" by each signatory nation "in the
manner which the Constitution of that nation prescribes." Ibid. Before adoption of the U. S. Constitution, all suchprovisions
would have taken effect as domestic law only ifCongress
on the American side, or Parliament on theBritish side, had written them into
domestic law. Id., at 274–277.

But, Justice Iredell adds,

after the Constitution’s adoption, while further parliamentary action
remained necessary in Britain (where the "practice" of the need for an "actof
parliament" in respect to "any thing of a legislativenature" had "been
constantly observed," id., at 275–276),further legislative action in respect to the treaty’s
debt-collection provision was no longer
necessary in the United States. Id., at 276–277. The ratification of the Constitution with its
Supremacy Clause means that treaty provi7 Cite as: 552 U.
S. ____ (2008)

BREYER, J., dissenting

sions that bind the United States may (and in this instance
did) also enter domestic law without further congressional action and
automatically bind the States and courts as well.

Id., at 277.

"Under this Constitution," Justice Iredell concluded, "so far
as a treaty constitutionally is binding, upon principles of

moral obligation,
it is also by the vigour of its ownauthority to be
executed in fact. It would not otherwise be the Supreme law in the new sense provided for." Ibid.; see also Story, supra,
§1833, at 697 (noting that the Supremacy Clause’s language was crafted to make
the Clause’s "obligation more strongly felt by the state judges" and to "remov[e]
every pretense" by which they could "escape from [its] controlling power"); see
also The Federalist No.42, p. 264 (C. Rossiter ed. 1961) (J. Madison) (Supremacy
Clause "disembarrassed" the Convention of the problempresented by the Articles
of Confederation where "treaties might be substantially frustrated by
regulations of the States"). Justice Iredell gave examples of provisions that
would no longer require further legislative action, such asthose requiring the
release of prisoners, those forbiddingwar-related "future confiscations" and
"‘prosecutions,’" and, of course, the specific debt-collection provision at
issue in the Ware case itself. 3 Dall., at 273, 277.

Some 30 years later, the Court returned to the "selfexecution"
problem. In

Foster, 2 Pet. 253, the Court examined a provision
in an 1819 treaty with Spain ceding Florida to the United States; the provision
said that "‘grants of land made’" by Spain before January 24, 1818, "‘shall
beratified and confirmed’" to the grantee. Id., at 310. Chief Justice Marshall, writing for the Court, noted
that, as a general matter, one might expect a signatory nation toexecute a
treaty through a formal exercise of its domestic sovereign authority (e.g.,
through an act of the legislature). Id., at 314. But in the United States "a different
principle" applies. Ibid. (emphasis added). The Suprem8 MEDELLIN
v. TEXAS

BREYER, J., dissenting

acy Clause means that, here, a treaty is "the law of the land
. . . to be regarded in Courts of justice as equivalentto an act of the
legislature" and "operates of itself withoutthe aid of any legislative
provision" unless it specifically contemplates execution by the legislature and
thereby

"addresses itself to the political, not the judicial
department

." Ibid. (emphasis added). The Court decided that the treaty provision in
question was not self-executing; in its view, the words "shall
be ratified" demonstrated that the provision foresaw further legislative action.
Id., at

315.

The Court, however, changed its mind about the resultin

Foster four years later, after being shown a less legislatively
oriented, less tentative, but equally authentic Span-ish-language version of the
treaty. See United States v. Percheman,
7 Pet. 51, 88–89 (1833). And by 1840, instances in which treaty provisions
automatically became part of domestic law were common enough for one Justice to
write that "it would be a bold proposition" to assert "that an act of Congress
must be first passed" in order to give a treaty effect as "a supreme law of the
land."
Lessee of Pollard’s Heirs v. Kibbe,
14 Pet. 353, 388 (1840) (Baldwin, J., concurring).

Since

Foster and Pollard, this Court has frequently heldor assumed that particular
treaty provisions are self-executing, automatically binding the States without
more.See Appendix A, infra (listing, as examples, 29 such cases,including 12 concluding that
the treaty provision invalidates state or territorial law or policy as a
consequence). See also Wu, Treaties’ Domains, 93 Va. L. Rev. 571, 583– 584
(2007) (concluding "enforcement against States is theprimary and historically
most significant type of treaty enforcement in the United States"). As far as I
can tell, the Court has held to the contrary only in two cases: Foster,
supra,
which was later reversed, and Cameron Septic
Tank Co. v. Knoxville,
227 U. S. 39 (1913), where specific 9 Cite as: 552 U. S.
____ (2008)

Of particular relevance to the present case, the Courthas
held that the United States may be obligated by treaty to comply with the
judgment of an international tribunal interpreting that treaty, despite the
absence of any congressional enactment specifically requiring such compliance.
See

Comegys v. Vasse,
1 Pet. 193, 211–212 (1828) (holding that decision of tribunal rendered pursuant
to aUnited States-Spain treaty, which obliged the parties to"undertake to make
satisfaction" of treaty-based rights,was "conclusive and final" and "not
re-examinable" in American courts); see also Meade v. United States,
9 Wall. 691, 725 (1870) (holding that decision of tribunal adjudicating claims
arising under United States-Spain treaty "was final and conclusive, and bar[red]
a recovery upon the merits" in American court).

All of these cases make clear that self-executing treaty

10 MEDELLIN v. TEXAS

BREYER, J., dissenting

provisions are not uncommon or peculiar creatures of our
domestic law; that they cover a wide range of subjects; that the Supremacy
Clause itself answers the self-execution question by applying many, but not all,
treatyprovisions directly to the States; and that the Clauseanswers the
self-execution question differently than doesthe law in many other nations. See

supra,
at 5–9. The cases also provide criteria that help determine which provisions automatically so apply—a matter to which I now turn.

B 1

The case law provides no simple magic answer to thequestion
whether a particular treaty provision is self-executing. But the case law does
make clear that, insofar as today’s majority looks for language about "selfexecution"
in the treaty itself and insofar as it erects "clearstatement" presumptions
designed to help find an answer,it is misguided. See,

e.g.,
ante,
at 21 (expecting "clea[r] state[ment]" of parties’ intent where treaty
obligation"may interfere with state procedural rules"); ante, at 30 (for treaty to be self-executing, Executive should at
drafting "ensur[e] that it contains language plainly providing for domestic
enforceability").

The many treaty provisions that this Court has found
self-executing contain no textual language on the point (see Appendix A,

infra).
Few, if any, of these provisions are clear. See, e.g.,
Ware,
3 Dall., at 273 (opinion of Ire-dell, J.). Those that displace state law in
respect to such quintessential state matters as, say, property, inheritance, or
debt repayment, lack the "clea[r] state[ment]" that the Court today apparently
requires. Compare ante,
at 21 (majority expects "clea[r] state[ment]" of parties’ intent where treaty
obligation "may interfere with state procedural rules"). This is also true of
those cases that deal 11 Cite as: 552 U. S. ____ (2008)

BREYER, J., dissenting

with state rules roughly comparable to the sort that the
majority suggests require special accommodation. See,

Indeed, the majority does not point to a single
ratifiedUnited States treaty that contains the kind of "clea[r]" or"plai[n]"
textual indication for which the majoritysearches.

Ante,
at 21, 30. JUSTICE STEVENS’
reliance upon one ratified and one un-ratified
treaty to make the point that a treaty could speak clearly on the matter of self-execution, see ante,
at 2 and n. 1, does suggest that thereare a few such treaties. But that simply
highlights howfew of them actually do speak clearly on the matter. And that is not because the United
States never, or hardly ever, has entered into a treaty with self-executing
provisions. The case law belies any such conclusion. Rather, it is because the
issue whether further legislative action is required before a treaty provision
takes domestic effect ina signatory nation is often a matter of how that
Nation’sdomestic law regards the provision’s legal status. And that domestic
status-determining law differs markedlyfrom one nation to another. See generally
Hollis, Comparative Approach to Treaty Law and Practice, in National Treaty Law
and Practice 1, 9–50 (D. Hollis, M.Blakeslee, & L. Ederington eds. 2005)
(hereinafter Hollis).As Justice Iredell pointed out 200 years ago, Britain, for
example, taking the view that the British Crown makestreaties but Parliament
makes domestic law, virtually always requires parliamentary legislation. See
Ware,
supra,
at 274–277; Sinclair, Dickson, & Maciver, United Kingdom, in National Treaty Law
and Practice, supra, at 727, 733, and n. 9 (citing Queen v. Secretary of
State for 12 MEDELLIN v.
TEXAS

BREYER, J., dissenting

Foreign and Commonwealth Affairs, ex parte Lord Rees-Mogg,

[1994] Q. B. 552 (1993) (in Britain, "‘treaties are
not self-executing’")). See also Torruella, The Insular Cases:
The Establishment of a Regime of Political Apartheid, 29 U. Pa. J. Int’l L. 283,
337 (2007). On the other hand, the United States, with its Supremacy Clause,
does not take Britain’s view. See, e.g., Ware, supra,
at 277 (opinion of Iredell, J.). And the law of other nations, the Netherlands
for example, directly incorporates manytreaties concluded by the executive into
its domestic law even without explicit parliamentary approval of the treaty. See
Brouwer, The Netherlands, in National TreatyLaw and Practice, supra, at 483, 483–502.

The majority correctly notes that the treaties do
notexplicitly state that the relevant obligations are self-executing. But given
the differences among nations, whywould drafters write treaty language stating
that a provision about, say, alien property inheritance, is self-executing? How
could those drafters achieve agreement when one signatory nation follows one
tradition and a second follows another? Why would such a difference matter
sufficiently for drafters to try to secure languagethat would prevent, for
example, Britain’s following treaty ratification with a further law while
(perhaps unnecessarily) insisting that the United States apply a treaty
provision without further domestic legislation? Above all, what does the absence
of specific language about "selfexecution" prove? It may reflect the drafters’
awareness ofnational differences. It may reflect the practical fact thatdrafters,
favoring speedy, effective implementation, conclude they should best leave
national legal practices alone.It may reflect the fact that achieving
international agreement on

this point is simply a game not worth the candle.

In a word, for present purposes, the absence or presenceof
language in a treaty about a provision’s self-executionproves nothing at all. At
best the Court is hunting the

13 Cite as: 552 U. S. ____
(2008)

BREYER, J., dissenting

snark. At worst it erects legalistic hurdles that canthreaten
the application of provisions in many existingcommercial and other treaties and
make it more difficult to negotiate new ones. (For examples, see Appendix B,

infra.)

2 The case law also suggests practical, context-specific criteria that this
Court has previously used to help determine whether, for Supremacy Clause
purposes, a treaty provision is self-executing. The provision’s text matters
very much. Cf.

ante,
at 17–19. But that is not because it contains language that explicitly refers to
self-execution. For reasons I have already explained, Part I–B–1, supra,
one should not expect that kind of textual statement. Drafting history is also relevant.
But, again, that is notbecause it will explicitly address the relevant
question.Instead text and history, along with subject matter and related
characteristics will help our courts determinewhether, as Chief Justice Marshall
put it, the treaty provision "addresses itself to the political . . .
department[s]" for further action or to "the judicial department" for direct
enforcement. Foster, 2 Pet., at 314; see also Ware,
3 Dall., at 244 (opinion of Chase, J.) ("No one can doubt that a treaty may
stipulate, that certain acts shall be done by the Legislature; that other acts
shall be done by the Executive; and others by the Judiciary").In making this
determination, this Court has found theprovision’s subject matter of particular
importance. Does the treaty provision declare peace? Does it promise not to
engage in hostilities? If so, it addresses itself to the political branches. See
id., at 259–262 (opinion of Iredell, J.).Alternatively, does it
concern the adjudication of traditional private legal rights such as rights to
own property,to conduct a business, or to obtain civil tort recovery? If so, it
may well address itself to the Judiciary. Enforcing 14
MEDELLIN
v. TEXAS

BREYER, J., dissenting

such rights and setting their boundaries is the bread-andbutter
work of the courts. See,

One might also ask whether the treaty provision confers
specific, detailed individual legal rights. Does it set forth definite standards
that judges can readily enforce? Other things being equal, where rights are
specific and readily enforceable, the treaty provision more likely "addresses"
the judiciary. See,

Alternatively, would direct enforcement require the courts to
create a new cause of action? Would such enforcement engender constitutional
controversy? Would it create constitutionally undesirable conflict with the
otherbranches? In such circumstances, it is not likely that theprovision
contemplates direct judicial enforcement. See,

e.g.,
Asakura,
supra, at 341 (although "not limited by anyexpress
provision of the Constitution," the treaty-making power of the United States
"does not extend ‘so far as to authorize what the Constitution forbids’").

Such questions, drawn from case law stretching back200 years,
do not create a simple test, let alone a magic formula. But they do help to
constitute a practical, context-specific judicial approach, seeking to separate
run-ofthe-mill judicial matters from other matters, sometimes more politically
charged, sometimes more clearly theresponsibility of other branches, sometimes
lacking those attributes that would permit courts to act on their ownwithout
more ado. And such an approach is all that we

Cite as: 552
U. S. ____ (2008) 15

BREYER, J., dissenting

need to find an answer to the legal question now before us.

C Applying the approach just described, I would find therelevant treaty
provisions self-executing as applied to the ICJ judgment before us (giving that
judgment domestic legal effect) for the following reasons, taken together.

First, the language of the relevant treaties strongly supports
direct judicial enforceability, at least of judgments of the kind at issue here.
The Optional Protocolbears the title "Compulsory Settlement of Disputes,"
thereby emphasizing the mandatory and binding nature of the procedures it sets
forth. 21 U. S. T., at 326. The bodyof the Protocol says specifically that "any
party" that has consented to the ICJ’s "compulsory jurisdiction" may bringa
"dispute" before the court against any other such party.Art. I, ibid. And the Protocol contrasts proceedings of the compulsory kind
with an alternative "conciliation procedure," the recommendations of which a
party may decide "not" to "accep[t]." Art. III, id., at 327. Thus, the OptionalProtocol’s basic objective is not just
to provide a forum for settlement but to provide a forum for compulsory settlement. Moreover, in accepting Article 94(1) of the
Charter,"[e]ach Member . . . undertakes to comply with the decision" of the ICJ
"in any case to which it is a party." 59 Stat. 1051. And the ICJ Statute (part
of the U. N. Charter) makes clear that, a decision of the ICJ between parties
that have consented to the ICJ’s compulsory jurisdiction has "binding
force . . . between the parties and in respect of that
particular case." Art. 59, id., at 1062 (emphasis added). Enforcement of a court’s judgment that
has "binding force" involves quintessential judicialactivity.True, neither the
Protocol nor the Charter explicitlystates that the obligation to comply with an
ICJ judgment 16 MEDELLIN v. TEXAS

BREYER, J., dissenting

automatically binds a party

as a matter of
domestic law without further domestic legislation.
But how
could the language of those documents do otherwise?
The treaties are multilateral. And, as I have explained, some signatories follow
British further-legislation-always-needed principles, others follow United
States Supremacy Clauseprinciples, and still others, e.g.,
the Netherlands, can directly incorporate treaty provisions into their
domesticlaw in particular circumstances. See Hollis 9–50. Why,given national
differences, would drafters, seeking as strong a legal obligation as is
practically attainable, usetreaty language that requires all signatories to adopt uniform domestic-law treatment in
this respect?

The absence of that likely unobtainable language canmake no
difference. We are considering the language for purposes of applying the
Supremacy Clause. And for that purpose, this Court has found to be
self-executing multilateral treaty language that is far less direct or forceful
(onthe relevant point) than the language set forth in the present treaties. See,

e.g.,
Trans
World Airlines, 466

U. S., at 247, 252;

Bacardi,
311 U. S., at 160, and n. 9,

161. The language here in effect tells signatory nations to
make an ICJ compulsory jurisdiction judgment "as bind- ing as you can." Thus,
assuming other factors favor self-execution, the language

adds, rather than subtracts,
support.

Indeed, as I have said,

supra,
at 4, the United States has ratified approximately 70 treaties with ICJ
disputeresolution provisions roughly similar to those contained in the Optional
Protocol; many of those treaties contemplate ICJ adjudication of the sort of
substantive matters (property, commercial dealings, and the like) that the Court
has found self-executing, or otherwise appear addressed to the judicial branch.
See Appendix B, infra. None of the ICJ provisions in these treaties contains
stronger languageabout self-execution than the language at issue here. See,
17 Cite as: 552 U. S. ____ (2008) BREYER, J., dissenting

e.g.

, Treaty of Friendship,
Commerce and Navigationbetween the United States of America and the Kingdom of
Denmark, Art. XXIV(2), Oct. 1, 1951, [1961] 12 U. S. T.935, T. I. A. S. No. 4797
("Any dispute between the Parties as to the interpretation or application of the
presentTreaty, not satisfactorily adjusted by diplomacy, shall besubmitted to
the International Court of Justice, unless the Parties agree to settlement by
some other pacific means"). In signing these treaties (in respect to, say, alien
landownership provisions) was the United States engaging in anear useless act?
Does the majority believe the draftersexpected Congress to enact further
legislation about, say,an alien’s inheritance rights, decision by decision?

I recognize, as the majority emphasizes, that the U.
N.Charter uses the words "undertakes to comply," ratherthan, say, "shall comply"
or "must comply." But what is inadequate about the word "undertak[e]"? A
leadingcontemporary dictionary defined it in terms of "lay[ing]oneself under
obligation . . . to perform or to execute." Webster’s New International
Dictionary 2770 (2d ed. 1939). And that definition is just what the equally
authoritative Spanish version of the provision (familiar toMexico) says
directly: The words "compromete a cumplir" indicate a present obligation to
execute, without any tentativeness of the sort the majority finds in the English
word "undertakes." See Carta de las Naciones Unidas, Articulo 94, 59 Stat. 1175
(1945); Spanish and EnglishLegal and Commercial Dictionary 44 (1945) (defining"comprometer"
as "become liable");

implicitlyprovides:
that "‘[t]he United States . . . shall be at liberty to make respecting this
matter, such laws as they think proper’").

And even if I agreed with J

USTICE
STEVENS that
the language is perfectly ambiguous (which I do not), I could not agree that
"the best reading . . . is . . . one that contemplates future action by the
political branches." Ante,
at 3. The consequence of such a reading is to place thefate of an international
promise made by the UnitedStates in the hands of a single State. See ante,
at 4–6. And that is precisely the situation that the Framerssought to prevent by
enacting the Supremacy Clause. See 3 Story 696 (purpose of Supremacy Clause "was
probably to obviate" the "difficulty" of system where treaties were "dependent
upon the good will of the states for their execution"); see also Ware,
3 Dall., at 277–278 (opinion of Iredell, J.).

I also recognize, as the majority emphasizes (

ante,
at 13–14), that the U. N. Charter says that "[i]f any party toa case fails to
perform the obligations incumbent upon itunder a judgment rendered by the [ICJ],
the other partymay have recourse to the Security Council." Art. 94(2), 59Stat.
1051. And when the Senate ratified the charter, it took comfort in the fact that
the United States has a veto in the Security Council. See 92 Cong. Rec.
10694–10695 (1946) (statements of Sens. Pepper and Connally).

But what has that to do with the matter? To begin with,the
Senate would have been contemplating politicallysignificant ICJ decisions, not,

e.g.,
the bread-and-butter commercial and other matters that are the typical subjects
of self-executing treaty provisions. And in any event, both the Senate debate
and U. N. Charter provision discuss and describe what happens (or does not
happen) when a nationdecides not to carry out an ICJ decision. See Charter of the United Nations
for the Maintenance of International 19 Cite as: 552 U. S.
____ (2008) BREYER, J., dissenting

Peace and Security: Hearing before the Senate Committee on
Foreign Relations, 79th Cong., 1st Sess., 286 (1945) (statement of Leo Pasvolsky,
Special Assistant to theSecretary of State for International Organization and
Security Affairs) ("[W]hen the Court has rendered a judgment and one of the
parties refuses to accept it, then the dispute becomes political rather than
legal"). The debates refer to remedies for a breach of our promise to carry out
an ICJ decision. The Senate understood, for example, that Congress (unlike
legislatures in other nations that do not permit domestic legislation to trump
treaty obligations, Hollis 47–49) can block through legislation self-executing,
as well as non-self-executing determinations. The debates nowhere refer to the
method we use for affirmativelycarrying out an ICJ obligation that no political
branch hasdecided to dishonor, still less to a decision that the President
(without congressional dissent) seeks to enforce. For that reason, these aspects
of the ratification debates arehere beside the point. See

infra,
at 23–24.

The upshot is that treaty language says that an ICJdecision
is legally binding, but it leaves the implementation of that binding legal
obligation to the domestic law of each signatory nation. In this Nation, the
Supremacy Clause, as long and consistently interpreted, indicates that ICJ
decisions rendered pursuant to provisions for binding adjudication must be
domestically legally bindingand enforceable in domestic courts

at least
sometimes. And for purposes of this argument, that
conclusion is allthat I need. The remainder of the discussion will explain why,
if ICJ judgments sometimes bind domestic courts,
then they have that effect here.

Second,

the Optional Protocol here
applies to a disputeabout the meaning of a Vienna Convention provision thatis
itself self-executing and judicially enforceable. The Convention provision is
about an individual’s "rights," namely, his right upon being arrested to be
informed of his 20 MEDELLIN v. TEXAS

BREYER, J., dissenting

separate right to contact his nation’s consul. See Art.
36(1)(b), 21 U. S. T., at 101. The provision language is precise. The dispute
arises at the intersection of an individual right with ordinary rules of
criminal procedure; it consequently concerns the kind of matter with whichjudges
are familiar. The provisions contain judicially enforceable standards. See Art.
36(2),

ibid. (providing for exercise of rights "in conformity
with the laws and regulations" of the arresting nation provided that the "laws
and regulations . . . enable full effect to be given to the purposes for which
the rights accorded under this Article areintended"). And the judgment itself
requires a furtherhearing of a sort that is typically judicial. See infra,
at 25–26.

This Court has found similar treaty provisions
self-executing. See,

e.g.,
Rauscher,
119 U. S., at 410–411, 429– 430 (violation of extradition treaty could be raised
as defense in criminal trial); Johnson v. Browne,
205 U. S. 309, 317–322 (1907) (extradition treaty required grant of writ of
habeas corpus); Wildenhus’s Case,
120 U. S., at 11, 17–18 (treaty defined scope of state jurisdiction in a
criminal case). It is consequently not surprising that, when Congress ratified
the Convention, the State Department reported that the "Convention is considered
entirely self-executive and does not require any implementing or complementing
legislation." S. Exec. Rep. No. 91–9, p. 5 (1969); see also id., at 18 ("To the extent that there are conflicts with Federal
legislation or State laws the ViennaConvention, after ratification, would
govern"). And the Executive Branch has said in this Court that other,
indistinguishable Vienna Convention provisions are self-executing. See Brief for
United States as Amicus Curiae in Sanchez-Llamas
v. Oregon,
O. T. 2005, Nos. 05–51 and 04–10566, p. 14, n. 2; cf. ante, at 10, n. 4 (majority leaves question open).

for "final" and "binding" judgments that "settl[e]"
treaty-based disputes is self-executing insofar as the judgment in question
concerns the meaning of an underlying treaty provision that is itself
self-executing. Imagine that twoparties to a contract agree to binding
arbitration aboutwhether a contract provision’s word "grain" includes rye.They
would expect that, if the arbitrator decides that the word "grain" does include
rye, the arbitrator will then simply read the relevant provision as if it said
"grain including rye." They would also expect the arbitrator toissue a binding
award that embodies whatever relief would be appropriate under that
circumstance.

e.g.,
the proper interpretation of the Vienna Convention clauses containing the rights
here at issue? Why not simply read the relevant Vienna Convention provisions as
if (between the parties and in respect to the 51 individuals at issue) they
contain wordsthat encapsulate the ICJ’s decision? See Art. 59, 59 Stat. 1062 (ICJ
decision has "binding force . . . between the parties and in respect of [the]
particular case"). Whywould the ICJ judgment not bind in precisely the sameway
those words would bind if they appeared in the relevant Vienna Convention
provisions—just as the ICJ says, for purposes of this case, that they do?

To put the same point differently: What sense would it make
(1) to make a self-executing promise and (2) to promise to accept as final an
ICJ judgment interpreting that self-executing promise, yet (3) to insist that
the judgmentitself is not self-executing (

i.e.,
that Congress must enact specific legislation to enforce it)?

I am not aware of any satisfactory answer to thesequestions.
It is no answer to point to the fact that in

interpretation binds our
courts with respect toindividuals whose rights were not espoused by a stateparty
in Avena.
Moreover, as the Court itself recognizes, see ante,
at 1–2, and as the President recognizes, seePresident’s Memorandum, the question
here is the verydifferent question of applying the ICJ’s Avena judgment tothe very parties whose interests Mexico and the
UnitedStates espoused in the ICJ Avena proceeding. It is in respect to these individuals that the United
States has promised the ICJ decision will have binding force. Art. 59, 59 Stat.
1062. See 1 Restatement (Second) of Conflict ofLaws §98 (1969); 2 Restatement
(Third) of Foreign Relations §481 (1986); 1 Restatement (Second) of Judgments
§17 (1980) (all calling for recognition of judgment rendered after fair hearing
in a contested proceeding before a court with adjudicatory authority over the
case). See also 1 Restatement (Second) of Conflict of Laws §106 ("A judgment
will be recognized and enforced in other states even though an error of fact or
law was made in the proceedings before judgment . . ."); id., §106, Comment a ("Th[is] ruleis . . . applicable to judgments rendered in foreign
nations. . ."); Reese, The Status in This Country of Judgments Rendered Abroad,
50 Colum. L. Rev. 783, 789 (1950)("[Foreign] judgments will not be denied effect
merely because the original court made an error either of fact orof law").

Contrary to the majority’s suggestion, see

ante,
at 15– 16, that binding force does not disappear by virtue of thefact that
Mexico, rather than Medellín himself, presented his claims to the ICJ. Mexico
brought the Avena case in part in "the exercise of its right of
diplomatic protection of its nationals," e.g.,
2004 I. C. J., at 21, ¶¶13(1), (3), including Medellín, see id., at 25, ¶16. Such derivative claims are a well-established feature
of international law, and the United States has several times asserted them on
behalf of its own citizens. See 2 Restatement (Third) of Foreign 23 Cite as: 552 U. S. ____ (2008)

v. Iran),
1979 I. C. J. 7, 8 (Judgment of Dec. 15); Case Concerning
Rights of Nationals of the United States of America in Morocco (Fr. v. U. S.),
1952 I. C. J. 176, 180– 181 (Judgment of Aug. 27). They are treated in relevant
respects as the claims of the represented individualsthemselves. See 2
Restatement (Third) of Foreign Relations, supra,
§713, Comments a,
b.
In particular, they cangive rise to remedies, tailored to the individual, that
bind the Nation against whom the claims are brought (here, the United States).
See ibid.;
see also, e.g.,
Frelinghuysen v. Key,
110 U. S. 63, 71–72 (1884).

Nor does recognition of the ICJ judgment as binding with
respect to the individuals whose claims were espoused by Mexico in any way
derogate from the Court’s holding in

Sanchez-Llamas,
supra.
See ante,
at 16, n. 8. This case does not implicate the general interpretive question
answered in Sanchez-Llamas: whether the Vienna Convention
displaces state procedural rules. We are instead confronted with the discrete
question of Texas’ obligation to comply with a binding judgment issued by
atribunal with undisputed jurisdiction to adjudicate therights of the
individuals named therein. "It is inherent in international adjudication that an
international tribunal may reject one country’s legal position in favor of
another’s—and the United States explicitly accepted thispossibility when it
ratified the Optional Protocol." Brief for United States as Amicus Curiae 22.

Fourth,

the majority’s very
different approach has seriously negative practical implications. The United
Stateshas entered into at least 70 treaties that contain provisions for ICJ
dispute settlement similar to the Protocol before us. Many of these treaties
contain provisions simi24 MEDELLIN v. TEXAS

BREYER, J., dissenting

lar to those this Court has previously found selfexecuting—provisions
that involve, for example, property rights, contract and commercial rights,
trademarks, civilliability for personal injury, rights of foreign diplomats,
taxation, domestic-court jurisdiction, and so forth. Compare Appendix A,

infra, with Appendix B, infra. If the Optional Protocol here, taken together with the U.
N.Charter and its annexed ICJ Statute, is insufficient to warrant enforcement of
the ICJ judgment before us, it is difficult to see how one could reach a
different conclusion in any of these other instances. And the consequence is
toundermine longstanding efforts in those treaties to create an effective
international system for interpreting andapplying many, often commercial,
self-executing treatyprovisions. I thus doubt that the majority is right when
itsays, "We do not suggest that treaties can never affordbinding domestic effect
to international tribunal judgments." Ante,
at 23–24. In respect to the 70 treaties that currently refer disputes to the
ICJ’s binding adjudicatoryauthority, some multilateral, some bilateral, that is
just what the majority has done.

Nor can the majority look to congressional legislation for a
quick fix. Congress is unlikely to authorize automaticjudicial enforceability of

all ICJ judgments, for that couldinclude some politically
sensitive judgments and others better suited for enforcement by other branches:
for example, those touching upon military hostilities, naval activity, handling
of nuclear material, and so forth. Nor is Congress likely to have the time
available, let alone thewill, to legislate judgment-by-judgment enforcement of,
say, the ICJ’s (or other international tribunals’) resolution of
non-politically-sensitive commercial disputes. And as this Court’s prior case
law has avoided laying down bright-line rules but instead has adopted a more
complex approach, it seems unlikely that Congress will find it easy todevelop
legislative bright lines that pick out those provi25 Cite
as: 552 U. S. ____ (2008)

BREYER, J., dissenting

sions (addressed to the Judicial Branch) where self-execution
seems warranted. But, of course, it is not necessary for Congress to do so—at
least not if one believes thatthis Court’s Supremacy Clause cases

already embodycriteria likely to work reasonably well. It is those
criteria that I would apply here.

Fifth

, other factors, related to
the particular judgmenthere at issue, make that judgment well suited to direct
judicial enforcement. The specific issue before the ICJ concerned "‘review and
reconsideration’" of the "possible prejudice" caused in each of the 51 affected
cases by anarresting State’s failure to provide the defendant withrights
guaranteed by the Vienna Convention. Avena, 2004

I. C. J., at 65, ¶138. This review will call for an
understanding of how criminal procedure works, including whether, and how, a
notification failure may work prejudice.

Id., at 56–57. As the ICJ itself recognized, "it is thejudicial
process that is suited to this task." Id., at 66, ¶140. Courts frequently work with criminal procedureand
related prejudice. Legislatures do not. Judicial standards are readily available
for working in this technical area. Legislative standards are not readily
available.Judges typically determine such matters, deciding, forexample, whether
further hearings are necessary, after reviewing a record in an individual case.
Congress doesnot normally legislate in respect to individual cases. Indeed, to
repeat what I said above, what kind of special legislation does the majority
believe Congress ought toconsider?

Sixth,

to find the United States’
treaty obligations self-executing as applied to the ICJ judgment (and
consequently to find that judgment enforceable) does notthreaten constitutional
conflict with other branches; it does not require us to engage in nonjudicial
activity; and itdoes not require us to create a new cause of action. The only
question before us concerns the application of the ICJ 26
MEDELLIN
v. TEXAS

BREYER, J., dissenting

judgment as binding law applicable to the parties in
aparticular criminal proceeding that Texas law creates independently of the
treaty. I repeat that the question before us does not involve the creation of a
private right ofaction (and the majority’s reliance on authority regardingsuch a
circumstance is misplaced, see

ante,
at 9, n. 3).

Seventh,

neither the President nor
Congress has expressed concern about direct judicial enforcement of theICJ
decision. To the contrary, the President favors enforcement of this judgment.
Thus, insofar as foreign policyimpact, the interrelation of treaty provisions,
or any othermatter within the President’s special treaty, military, and foreign
affairs responsibilities might prove relevant, such factors favor, rather than militate against, enforcement of the judgment
before us. See, e.g., Jama v. Immigration and
Customs Enforcement, 543 U. S. 335, 348 (2005) (noting
Court’s "customary policy of deference to thePresident in matters of foreign
affairs").

For these seven reasons, I would find that the United States’
treaty obligation to comply with the ICJ judgmentin

Avena is enforceable in court in this case without further
congressional action beyond Senate ratification of therelevant treaties. The
majority reaches a different conclusion because it looks for the wrong thing
(explicit textual expression about self-execution) using the wrong standard
(clarity) in the wrong place (the treaty language). Hunting for what the text
cannot contain, it takes a wrong turn.It threatens to deprive individuals,
including businesses, property owners, testamentary beneficiaries, consular
officials, and others, of the workable dispute resolutionprocedures that many
treaties, including commerciallyoriented treaties, provide. In a world where
commerce, trade, and travel have become ever more international, that is a step
in the wrong direction.

Were the Court for a moment to shift the direction of its
legal gaze, looking instead to the Supremacy Clause and to

27 Cite as: 552 U. S. ____ (2008)

BREYER, J., dissenting

the extensive case law interpreting that Clause as appliedto
treaties, I believe it would reach a better supported,more felicitous
conclusion. That approach, well embedded in Court case law, leads to the
conclusion that the ICJ judgment before us is judicially enforceable without
further legislative action.

II A determination that the ICJ judgment is enforceable does not quite end
the matter, for the judgment itselfrequires us to make one further decision. It
directs the United States to provide further judicial review of the 51cases of
Mexican nationals "by means of its own choosing."

Avena, 2004 I. C. J., at 72, ¶153(9). As I have explained, I
believe the judgment addresses itself to the Judicial Branch. This Court
consequently must "choose" the means. And rather than, say, conducting the
further review in this Court, or requiring Medellín to seek thereview in another
federal court, I believe that the proper forum for review would be the
Texas-court proceedingsthat would follow a remand of this case. Beyond the fact
that a remand would be the normal course upon reversing a lower court judgment,
there areadditional reasons why further state-court review would be particularly
appropriate here. The crime took place inTexas, and the prosecution at issue is
a Texas prosecution.The President has specifically endorsed further Texas court
review. See President’s Memorandum. The ICJ judgment requires further hearings
as to whether the police failure to inform Medellín of his Vienna Convention
rights prejudiced Medellín, even if such hearings would not otherwise be
available under Texas’ procedural default rules. While Texas has already
considered that matter, itdid not consider fully, for example, whether
appointedcounsel’s coterminous 6-month suspension from the practice of the law
"caused actual prejudice to the defendant"— 28 MEDELLIN
v. TEXAS

BREYER, J., dissenting

prejudice that would not have existed had Medellín known he
could contact his consul and thereby find a different lawyer.

Id., at 60, ¶121.

Finally, Texas law authorizes a criminal defendant toseek
postjudgment review. See Tex. Code Crim. Proc. Ann., Art. 11.071, §5(a)(1)
(Vernon Supp. 2006). And Texas law provides for further review where American
lawprovides a "legal basis" that was previously "unavailable."See

Ex parte Medellín,
223 S. W. 3d 315, 352 (Tex. Crim. App. 2006). Thus, I would send this case back
to the Texas courts, which must then apply the Avena judgment as binding law. See U. S. Const., Art. VI, cl. 2; see
also, e.g.,
Dominguez
v. State,
90 Tex. Crim. 92, 99, 234 S. W. 79, 83 (1921) (recognizing that treaties are
"part of the supreme law of the land" and that "it is the duty of the courts of
the state to take cognizance of, construe and give effect" to them (internal
quotation marks omitted)).

III Because the majority concludes that the Nation’s international legal
obligation to enforce the ICJ’s decision isnot automatically a domestic legal
obligation, it must thendetermine whether the President has the constitutional
authority to enforce it. And the majority finds that he does not. See Part III,

ante.
In my view, that second conclusion has broader implications than the majority
suggests. The President here seeks to implement treaty provisions in which the
United States agrees that the ICJ judgment is binding with respect to the Avena parties. Consequently, his actionsdraw upon his constitutional
authority in the area of foreign affairs. In this case, his exercise of that
power falls within that middle range of Presidential authoritywhere Congress has
neither specifically authorized nor specifically forbidden the Presidential
action in question.See Youngstown Sheet
& Tube Co. v. Sawyer, 343 U. S. 29 Cite as: 552 U. S. ____
(2008)

BREYER, J., dissenting

579, 637 (1952) (Jackson, J., concurring). At the same time,
if the President were to have the authority he asserts here, it would require
setting aside a state procedural law.

It is difficult to believe that in the exercise of his
Article II powers pursuant to a ratified treaty, the President can

never take action that would result in setting aside state law. Cf.
United
States v. Pink,
315 U. S. 203, 233 (1942) ("No State can rewrite our foreign policy to conform
to itsown domestic policies"). Suppose that the President believes it necessary
that he implement a treaty provision requiring a prisoner exchange involving
someone in statecustody in order to avoid a proven military threat. Cf. Ware,
3 Dall., at 205. Or suppose he believes it necessary to secure a foreign
consul’s treaty-based rights to move freely or to contact an arrested foreign
national. Cf. Vienna Convention, Art. 34, 21 U. S. T., at 98. Does the
Constitution require the President in each and every suchinstance to obtain a
special statute authorizing his action?On the other hand, the Constitution must
impose significant restrictions upon the President’s ability, by invoking
Article II treaty-implementation authority, to circumventordinary legislative
processes and to pre-empt state law as he does so.

Previously this Court has said little about this question. It
has held that the President has a fair amount of authority to make and to
implement executive agreements, at least in respect to international claims
settlement, and that this authority can require contrary state law to be set
aside. See,

e.g., Pink,
supra, at 223, 230–231, 233–234; United States v. Belmont,
301 U. S. 324, 326–327 (1937).It has made clear that principles of foreign
sovereignimmunity trump state law and that the Executive, operating without
explicit legislative authority, can assert those principles in state court. See
Ex parte
Peru, 318 U. S. 578, 588 (1943). It has also made
clear that the Executive has 30 MEDELLIN v. TEXAS

BREYER, J., dissenting

inherent power to bring a lawsuit "to carry out
treatyobligations."

Sanitary Dist. of
Chicago v. United States,
266 U. S. 405, 425, 426 (1925). But it has reserved judgment as to "the scope of
the President’s power to preemptstate law pursuant to authority delegated by . .
. a ratified treaty"—a fact that helps to explain the majority’s inability to
find support in precedent for its own conclusions. Barclays Bank PLC
v. Franchise Tax Bd.
of Cal., 512 U. S. 298, 329 (1994).

Given the Court’s comparative lack of expertise in foreign
affairs; given the importance of the Nation’s foreign relations; given the
difficulty of finding the proper constitutional balance among state and federal,
executive and legislative, powers in such matters; and given the likelyfuture
importance of this Court’s efforts to do so, I wouldvery much hesitate before
concluding that the Constitution implicitly sets forth broad prohibitions (or
permissions) in this area. Cf.

ante,
at 27–28, n. 13 (stating thatthe Court’s holding is "limited" by the facts that
(1) this treaty is non-self-executing and (2) the judgment of an international
tribunal is involved).

I would thus be content to leave the matter in the
constitutional shade from which it has emerged. Given my view of this case, I
need not answer the question.And I shall not try to do so. That silence,
however, cannot be taken as agreement with the majority’s Part III conclusion.

IV The majority’s two holdings taken together producepractical anomalies.
They unnecessarily complicate the President’s foreign affairs task insofar as,
for example, they increase the likelihood of Security Council

Avena enforcement proceedings, of worsening relations with ourneighbor
Mexico, of precipitating actions by other nationsputting at risk American
citizens who have the misfortune 31 Cite as: 552 U. S.
____ (2008)

BREYER, J., dissenting

to be arrested while traveling abroad, or of diminishingour
Nation’s reputation abroad as a result of our failure to follow the "rule of
law" principles that we preach. The holdings also encumber Congress with a task
(postratification legislation) that, in respect to many decisions of
international tribunals, it may not want and which it may find difficult to
execute. See

supra, at 23–24 (discussingthe problems with
case-by-case legislation). At the same time, insofar as today’s holdings make it
more difficult to enforce the judgments of international tribunals, including
technical non-politically-controversial judgments, those holdings weaken that
rule of law for which our Constitution stands. Compare Hughes Defends Foreign
Policies in Plea for Lodge, N. Y. Times, Oct. 31, 1922, p. 1, col. 1, p. 4,col.
1 (then-Secretary of State Charles Evans Hughesstating that "we favor, and
always have favored, an international court of justice for the determination
according tojudicial standards of justiciable international disputes");Mr. Root
Discusses International Problems, N. Y. Times, July 9, 1916, section 6, book
review p. 276 (former Secretary of State and U. S. Senator Elihu Root stating
that "‘a court of international justice with a general obligation to submit all
justiciable questions to its jurisdiction and toabide by its judgment is a
primary requisite to any real restraint of law’"); Mills, The Obligation of the
United States Toward the World Court, 114 Annals of the American Academy of
Political and Social Science 128 (1924) (Congressman Ogden Mills describing the
efforts of then-Secretary of State John Hay, and others, to establish aWorld
Court, and the support therefor).

These institutional considerations make it difficult to
reconcile the majority’s holdings with the workable Constitution that the
Founders envisaged. They reinforce theimportance, in practice and in principle,
of asking ChiefJustice Marshall’s question: Does a treaty provision address the
"Judicial" Branch rather than the "Political

32 MEDELLIN
v. TEXAS

BREYER, J., dissenting

Branches" of Government. See

Foster,
2 Pet., at 314. And they show the wisdom of the well-established precedent that
indicates that the answer to the question here is "yes." See Parts I and II,
supra.

V In sum, a strong line of precedent, likely reflecting theviews of the
Founders, indicates that the treaty provisions before us and the judgment of the
International Court ofJustice address themselves to the Judicial Branch and
consequently are self-executing. In reaching a contraryconclusion, the Court has
failed to take proper account ofthat precedent and, as a result, the Nation may
well break its word even though the President seeks to live up to that word and
Congress has done nothing to suggest the contrary. For the reasons set forth, I
respectfully dissent.

BREYER, J., dissenting 33 Cite as:
552 U. S. ____ (2008)

Appendix A to opinion of BREYER, J.

APPENDIXES TO OPINION OF BREYER, J.

A

Examples of Supreme Court decisions considering a treaty
provision to be self-executing. Parentheticals indicate the subject matter; an
asterisk indicates that the Court applied the provision to invalidate a contrary
state or territorial law or policy.

United States treaties in force containing provisions for the
submission of treaty-based disputes to the International Court of Justice.
Parentheticals indicate subjectmatters that can be the subject of ICJ
adjudication thatare of the sort that this Court has found self-executing.

2. Agreement for Economic Assistance Between the Government of the United
States of America and the Government of Israel Pursuant to the General Agreement
for Technical Cooperation, May 9,1952, [1952] 3 U. S. T. 4174, 4177, T. I. A. S.
No.2561 (same)